Marijuana Legalization: A States' Rights Showdown?

Paul Starobin's cover story in the latest issue of National Journal poses California's ballot initiative to legalize marijuana as emblematic of a trend that's happening across the country--states' rights libertarianism is on the rise--and a serious (and seriously interesting) campaign.

The campaign to legalize marijuana in California, as I've noted before, is real. It's a campaign that's being run by pros, and it has a legitimate shot at winning...though there is one significant challenge, one that Starobin focuses on: the federal government would have to go along with it.

The Obama administration has signaled that it will back off the "Drug War," not just in mentality, but in actual law-enforcement priorities; Eric Holder told federal attorneys to stop prosecuting medical-marijuana users, after Obama promised as much on the campaign trail, and drug czar Gil Kerlikowske has declared the so-called "drug war" to be over (though that's not the first time such a declaration has been made.)

But legalization of marijuana, Kerlikowske has made it clear, is a "non-starter" in an official statement issued in October. Here's an excerpt:
Legalization is being sold as being a cure to ending violence in Mexico, as a cure to state budget problems, as a cure to health problems. The American public should be skeptical of anyone selling one solution as a cure for every single problem. Legalized, regulated drugs are not a panacea--pharmaceutical drugs in this country are tightly regulated and government controlled, yet we know they cause untold damage to those who abuse them.

To test the idea of legalizing and taxing marijuana, we only need to look at already legal drugs--alcohol and tobacco. We know that the taxes collected on these substances pale in comparison to the social and health care costs related to their widespread use.

Bottom-line: the federal government will not go along with legalization. In an interview with Starobin for the National Journal piece, that stance doesn't seem to have changed.
In an interview, Gil Kerlikowske, the drug czar tapped by Obama to direct the White House Office of National Drug Control Policy, declined to speculate on the federal response if the California initiative wins approval. But he pointedly noted that "the Department of Justice still enforces the Controlled Substances Act," with its marijuana penalties. The California effort is built on "an incredible foundation of sand" and could pose a nightmare for law enforcement. The notion that marijuana causes "no harm" among users is "propaganda" peddled by the "well-funded" pro-legalization forces, Kerlikowske added.

Still, it is not as though the Obama White House is echoing Nixon's clarion call to wage a war on drugs. Asked whether he considered that war a success, Kerlikowske, a former Seattle police chief, replied that for ordinary Americans, for the folks with whom he meets in his travels across the country, "they don't see the war as successful." As for the administration, "We want to move away from the war" toward a policy stressing prevention of drug abuse and the treatment of users, he said.

Presumably, however, the decision of what to do if California legalizes is above Kerlikowske's pay-grade. The drug czar would likely make a recommendation, Holder would weigh in, and Obama would likely make the final call. As a matter of law enforcement, Obama could let Holder handle it; but, as a matter of policy, marijuana possibly being legal in an entire state is too big to let anyone other than the president handle the executive judgment.

It's unclear what would happen if California did legalize marijuana. The ballot measure doesn't legalize the substance completely throughout the state: it allows for counties to legalize on their own legalizes possession for personal use statewide and allows counties to legalize, regulate, and tax the sale of marijuana individually if they so choose, creating what the ballot initiative's backers hope would mirror "wet" and "dry" counties elsewhere, in which alcohol is legal or illegal.

At the end of the day, it could come down to manpower. If the measure passes, county cops can enforce the laws of their counties, while federal law enforcers could come in to enforce the Controlled Substances Act. If many counties legalize marijuana sales, it could come down to whether the DEA and FBI have enough officers and the inclination to enforce marijuana's illegality in California while there's a drug war raging in Mexico that's already demanding drug-enforcement resources.

In their previous state-legislature and ballot-initiative campaigns, marijuana reformers have long been plagued by a lack of confidence that any state-level law will be meaningful, given the federal government's supercedence, as a gross disincentive to vote for reform. That was a problem for medical-marijuana campaigns, although now that the administration has decided not to enforce its anti-medical-marijuana laws, it's not anymore, as medical marijuana has proliferated to a handful of states and the District of Columbia, with more laws being pushed in others.

But even though the Tax Cannabis campaign in California is well organized and well timed, that same issue looms over all the political and strategic advantages its proponents do enjoy.