Short Take: Will The Feds Get Out Of The Weed War?

Senate Majority Leader Chuck Schumer proposes federal decriminalization of marijuana.

Senate Democratic Leader Charles Schumer (D-NY) has joined with Senators Cory Booker (D-NJ) and Ron Wyden (D-OR) to propose serious marijuana reform legislation. Although still in a discussion draft, the proposed Cannabis Administration & Opportunity Act (CAOA) represents a serious attempt to respond to the dramatic increase in support for marijuana legalization while still respecting those jurisdictions that have refused to embrace marijuana law reform. In short, the CAOA embraces Marijuana Federalism.

Jon Adler gets the plug he’s earned here.

(I wonder if any of its sponsors read my book: Marijuana Federalism: Uncle Sam and Mary Jane.)

What’s remarkable about this isn’t so much that it’s Schumer, who will do whatever serves his political interests and decriminalizing weed is a pretty popular goal, especially among the younger Democratic Party faithful, but that this may well be the most unconstroversial thing the Dems have raised since they took Congress. Why? Because the feds never should have been involved with marijuana in the first place.

The CAOA would decriminalize marijuana at the federal level, but would not preempt state laws that prohibit or limit marijuana use and possession. Under the CAOA, trafficking in marijuana and distributing marijuana contrary to applicable state law would also be a federal crime, as it is with alcohol. In other words, the CAOA would give states greater autonomy to set their own marijuana laws in response to local preferences. Other provisions of the proposed bill would pave the way for the taxation and regulation of marijuana (treating marijuana much like nutritional supplements) and expunge non-violent cannabis offenses.

The question isn’t whether there’s a stretch of the commerce clause that can serve to justify the feds sticking their noses into local state criminal issues. There is, provided one squints really hard and believes that if you click the heels of your boots three times, everything falls under the Commerce Clause.

The point is that the federal involvement in marijuana was because there was a time when fear of drugs was a dominant political issue, with most of the nation supporting tough on crime law, harsher sentences, increased law enforcement, and any politician who wanted to get elected could hop on the drug train and ride it all the way to D.C.

Marijuana ended up on Schedule I in 1970, as its use became common among hippies and yippies protesting the Vietnam War and going to really great concerts. Maybe Nixon was doing it to oppress black people, but the evidence of that is dubious. No matter, as federal involvement with pot wasn’t about saving the nation from Reefer Madness, but giving pols a commonly-used drug upon which to harangue its evils and promise he would save the children from its evil influence.

Eliminating the federal prohibition would not only give states greater control over marijuana within their jurisdictions. It would also eliminate the distortions and perverse incentives created by the way federal marijuana prohibition interacts with tax law, banking regulation, firearm background checks, and immigration law. Treating marijuana more like alcohol would further mean states would continue to receive federal assistance in combatting interstate trafficking—and it would be easier to focus federal resources in this way without the federal prohibition overhang.

Love weed or hate weed, this shift will put it back where it belongs, in the hands of states who can decide whether to decriminalize it, legalize it or continue to treat it as a plague upon the nation. All this accomplishes is getting the feds out of the pot prosecution business, a place they never should have been in the first place. Amen.

16 thoughts on “Short Take: Will The Feds Get Out Of The Weed War?

  1. Rob McMillin

    I have a theory of conservation of cops, particularly attaching to vice policing, that says a police force once created will find new crimes, even if they have to be invented. I have heard (but not seen rigorously shown) that Prohibition’s end eventually brought stepped-up drug enforcement, which ultimately morphed into the Nixonian drug wars, and at least partly because there were a lot of former Untouchables needing paychecks.

    1. Hal

      There’s something to this.

      Per (almost as definitve a source as wikipedia); “However, Anslinger also knew that support for alcohol prohibition was waning and so was the money the government was spending to fight it. His new department’s funding would shrivel up chasing the relatively minor problems of opium and cocaine, outlawed 15 years before. He needed a new threat to American society to help his career, so marijuana would have to become a menace.”

      While Anlsinger had prev’ly said marijuana was not dangerous, as prohibition was coming to an end he changed his tune. Per CBS News Anslinger;“[C]ontacted 30 scientists… 29 told him cannabis was not a dangerous drug. But it was the theory of the single expert who agreed with him that he presented to the public — cannabis was an evil that should be banned — and the press ran with this sensationalized version.”

      PotGuide, again; “Helping Anslinger overcome the cognitive dissonance of his 180-degree turn cannabis was his virulent racism. He refused to allow agents of color into his office, and even in his previous government positions he used the N-word so frequently in official memos that multiple senators demanded his resignation. Once Anslinger linked marijuana use to Mexican and Black Americans, his entire crusade could be summed up by this abhorrent direct quote: ‘Reefer makes darkies think they’re as good as white men.’”

      I’d say that Pournelle’s Iron Law definitely applies.

  2. Richard Kopf


    As long as the cartels make money distributing marijuana in places like Colorado where the drug is highly regulated and highly taxed if sold legally, the feds should stay in the weed game.

    The foregoing said, candor dictates that I disclose my plan to smoke a joint before I die. Alas, the time frame is getting short.

    All the best.


    PS I yearn for a photo of Chuckie S. smoking a joint in a suit and tie as he pontificates on the portico of some important building, proclaiming a chicken in every pot, and dope too.

    1. SHG Post author

      I should have added that foreign drug interdiction, or untaxed imported weed, presents a separate matter. Please take pics. If needed, I could probability facilitate things for you. I know people.

      1. James

        All he has to do is step across the border to Colorado (well, after traversing the state of Nebraska). All you have to do is step across the border to Mass. And you can even preorder online. What a country.

          1. Richard Kopf


            I think I will follow the example of William F. Buckley.* I’ll get Skink to find a sailboat, and sale out out of US territorial waters to take my first (and only) hit of the demon weed. Old Man and the Sea, don’t you know!

            All the best.


            In 1972, he was quoted in the NYT: “Asked whether he had ever smoked marijuana himself, Mr. Buckley laughed and said: ‘Yes. It was on my boat, outside the three‐mile limit—I’m a law‐and‐ order advocate, you know. To tell the truth, marijuana didn’t do a thing for me.’”

            1. Skink

              If there will be smokin’, sail isn’t the way to go. It’ll be a motor vessel with a tablet for driving itself. Old guys high on a sail means dunkin’.

    1. SHG Post author

      Years ago, I was approached by BT to do their defense. I was asked, “are you willing to defend an industry that everybody believe sells cancer?” I replied, “I defend people who sell heroin to children. You guys are pikers.”


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