Marijuana Legalization Measures Raise New Complexities

U.S. Rep. Adam Smith and 17 other U.S. Congress members formally asked the Department of Justice and Drug Enforcement Administration not to enforce federal drug laws against marijuana use in Washington and Colorado in a letter released Friday. Though both states have made regulated, recreational use of marijuana legal, federal agencies still have the power to enforce a federal ban on the drug.

This sentiment is popular if not unanimous.  The Administration early on made it a matter of policy to not target medicinal marijuana that was provided subsequent to state law.  For reasons the critics of the change in policy repeatedly don't make that clear to me (the confirmation of a strict DEA head seems notable), this hands-off policy changed to some degree mid-term.  The Administration is not ideal here though some positives can be cited.  No radical change against the "drug war" though. 

Two states now decriminalizing marijuana will raise new concerns, particularly since they do more [edit: but see comment by Marty Lederman questioning if the state itself will be in trouble] than merely decriminalize, which is different than non-enforcement or laws that make personal possession of small amounts a trivial matter or even protected (Alaska held that it was a matter of privacy).   Such is the rub -- the regulation and taxation of the substance is logical and all, but it raises more red flags for the federal government. Medicinal marijuana laws got three votes in the Supreme Court, but even the dissent didn't go further than that. Likewise, it noted that "homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character," while regulating the sale of the stuff surely does.

Even going beyond that narrow issue, states might be deemed to have more interest over health matters, covering medicinal use.  As noted in an article discussing the Supreme Court striking down a barrier to Oregon's euthanasia law:

While the court's decision was based on standard principles of administrative law, and not on the Constitution, it was clearly influenced by the majority's view that the regulation of medical practice belonged, as a general matter, to the states.

Of course, six justices upheld a federal policy against medicinal marijuana given the comprehensive scheme in place regulating drugs in a national and international commerce, holding even the limited effects of medicinal marijuana (somehow two justices felt differently for the PPACA) on said commerce justified overriding state law.  Still, the opposition had more bite than states going its own way on even recreational use of drugs.  Nonetheless, bite there is as a matter of policy and argument, particularly unless we are talking about major distribution and production centers. These still are largely matters of state concern ideally and in practice. 

Drug policy overall tends to have medical effects given the nature of the substance in question, even if the drugs in question are not used as traditional medicine.  Local crime policy is also something best left to the states and use of states as laboratories is totally appropriate here.  This too has constitutional implications, at least as a matter of policy that should be rejected only in compelling cases.  Personally, I also think use of marijuana is basically a personal liberty issue, even without the overlap with various specific constitutional provisions, including federalism concerns.*

Some benign neglect from the Obama Administration, while for form's sake at least not officially accepting the laws as valid, would be best.

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*  Marijuana use over time repeated had various First Amendment implications, for instance.  It was a symbol of dissent, a social lubricant (association/assembly) and the mind altering functions had both communicative and religious/spiritual applications. Criminalization in practice violates the 4A, led to excessive punishments and is applied unequally.

And, general liberty concerns, including for personal health, warrants protection too. Meanwhile, for consenting adults, the state interests for criminalization were/are low, especially given the dangers of various legal substances. A separate amendment was deemed required to nationally target alcohol and that went badly.  Marijuana should be deemed similar in that respect.