Pubdate: Sun, 22 May 2016
Source: Commercial Appeal (Memphis, TN)
Copyright: 2016 The Commercial Appeal
Author: Erwin Chemerinsky, Special To The Washington Post
Note: Erwin Chemerinsky is dean and distinguished professor of law at 
the University of California, Irvine School of Law.


There are rumors that the federal government may soon lift its ban on 
marijuana, but that wouldn't end marijuana prohibitions in the United 
States. This incongruity is the result of federalism: the ability of 
each jurisdiction - the federal government and every state - to 
maintain its own laws as to which drugs are illegal and which are not.

Completely legalizing marijuana in the United States would require 
the actions of both the federal government and every state 
government. If the federal government repealed its criminal 
prohibition of marijuana or rescheduled the drug under federal law, 
that would not change state laws that forbid its possession or sale. 
Likewise, state governments can repeal their marijuana laws, in whole 
or in part, but that does not change federal law.

When Colorado and Washington legalized the possession of less than 
one ounce of marijuana, questions arose as to how this would interact 
with federal law. Specifically, the question was whether such state 
efforts are pre-empted by the federal law, which still prohibits 
marijuana as a controlled substance like heroin and cocaine.

The answer is clear: States can have whatever laws they want with 
regard to marijuana or any other drug. No state is required to have a 
law prohibiting or regulating marijuana. The Supreme Court has 
repeatedly held that Congress cannot force states to enact laws; such 
coercion violates the 10th Amendment. A state could choose to have no 
law prohibiting marijuana, or a law prohibiting marijuana with an 
exception for medical use, or a law allowing possession of small 
amounts of marijuana, or anything else. In fact, across the U.S. 
today, this is exactly the situation - many states have very 
different laws concerning marijuana.

Similarly, if the federal government were to repeal the prohibition 
of marijuana or reschedule it under the Controlled Substances Act, 
that would not change state laws. States still could prohibit and 
punish the sale and possession of marijuana under state criminal statutes.

Contrary to what many believe, marijuana laws continue to be enforced 
by both states and the federal government. According to statistics 
from the Federal Bureau of Investigation, 693,482 individuals in the 
United States were arrested in 2013 and charged with marijuana 
violations. Of these, 609,423 - or 88 percent - were arrested for 
simple possession. There is an enormous cost in terms of law 
enforcement resources, the criminal justice system and people's lives 
for marijuana to remain illegal. Even for those arrested and never 
prosecuted or convicted, arrest records have real harms in terms of 
the ability to get jobs, loans, housing and benefits.

Like all drug laws, the prohibition against marijuana is much more 
likely to be enforced against African-Americans and Latinos than 
against whites. According to a 2013 study, whites and blacks use 
marijuana at roughly the same rates, but blacks are 3.7 times more 
likely than whites to be arrested for possession of marijuana.

Yet there is little benefit to illegality. The primary argument for 
keeping marijuana illegal is that it is harmful. But as President 
Obama observed, pot is no "more dangerous than alcohol." Many things 
are harmful - cigarettes, foods high in sugar and salt and 
cholesterol - but that does not mean that they should be illegal. In 
fact, there is a good deal of evidence that marijuana is 
significantly less harmful than tobacco or alcohol and that it has 
benefits in treating some medical conditions such as glaucoma and 
seizure disorders, and alleviating some of the ill effects of 
chemotherapy. That is why 24 states and the District allow medical 
use of marijuana.

Like the prohibition of alcohol in the 1920s, the prohibition of 
marijuana has been a failure. The drug is readily available and it is 
estimated that 30 million Americans used it in the past year. And 
similar to the prohibition of alcohol, it is a costly failure. In 
addition to the cost in enforcing the criminal laws, there is the 
loss of significant revenue that could be gained from taxation and 

It is a question of when, not whether, marijuana becomes legal in 
America. A study by the Pew Research Center last year found that a 
majority of Americans now favor legalization, and only 44 percent 
believe it should be illegal. Of those under 35 years old, 68 percent 
believe that marijuana should be legal. But there is no doubt that 
the confusion federalism entails will make legalizing marijuana much 
more difficult.
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