America’s Federalism Advantage And Marijuana Legalization

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Peter Ferrara Contributor
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In America, states are not just subunits of the federal government required to carry out federal policies, as local governments in European countries generally are.

Each state is legally sovereign in its own right, with its own Governor and legislature elected to exercise its own powers. This structure is established in the Constitution, hence our nation’s name: the United States.

This framework is called “federalism,” which provides valuable advantages for America. With that fundamental structure, the states are each individual laboratories of democracy, free to try out policies the voters of each state think would work out best for them.

That not only enables variation for the different local conditions and populations of each state, but it also creates a competition and experiment in each state, enabling America to see the results of different policies in the real world, rather than adopting one policy nationwide. When a policy is demonstrated to work well in one state, other states learn from that and can copy what is shown to work best.

This is why federalism was so important to our Founding Fathers, as recognized by President Reagan. Early in his first year, Reagan issued an Executive Order commanding the agencies and departments of his executive branch to follow the principles of federalism in every decision they made, favoring more power, authority and funding down to the states unless there was an overriding reason to the contrary.

Today, federalism is proving to be the best approach for addressing the issue of legalization of marijuana. That is recognized in bipartisan legislation just introduced in Congress by Senators Cory Gardner (R-Colo.) and Elizabeth Warren (D-Mass.) and by Reps. David Joyce (R-Ohio) and Earl Blumenauer (D-Ore.), labeled the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act. That would amend federal law to recognize that each state has the legal right to determine for itself the best policies concerning marijuana within its borders.

Forty-six states have already changed their own laws to decriminalize marijuana. Under President Obama, the Department of Justice accommodated that by issuing a “guidance” recognizing these changes in state laws to ensure that limited law enforcement resources would not be used to prosecute violations of increasingly outdated, inconsistent federal law, which still prohibits the sale, distribution and use of marijuana.

But that “guidance” did not involve a permanent change in federal law (something the Obama administration had consistent trouble with). As a result, earlier this year Attorney General Jeff Sessions (who is frequently not on the same page with President Trump), withdrew the “guidance,” which he had the legal authority to do with the stroke of a pen.

But recognizing the legal insufficiency of the Obama administration’s attempted fix, every year since 2014, Rep. Dana Rohrbacher (R-Calf.) has inserted an amendment into the appropriations bill governing the Justice Department to prohibit it from using federal funds to prosecute medical marijuana businesses and users for violating the outdated federal law. The Los Angeles Times called that “a temporary but necessary fix” for the outdated federal law.

The STATES Act is the permanent fix. That is why the proposed legislation has been endorsed by organizations from Left to Right, including the American Civil Liberties Union (ACLU), Americans for Prosperity, Americans for Safe Access, Americans for Tax Reform (ATR), the Brennan Center for Justice, Campaign for Liberty, the Competitive Enterprise Institute (CEI), the Drug Policy Alliance, the Institute for Liberty, LatinoJustice PRLDEF, the Law Enforcement Action Partnership, the Marijuana Policy Project, the Massachusetts Bankers Association, the National Conference of State Legislators, the National Organization for the Reform of Marijuana Laws (NORML), R Street and the Taxpayers Protection Alliance, among others.

President Trump has long-supported the same policy, going back to his 2016 campaign. He said even in 2015, “In terms of marijuana and legalization, I think that should be a state issue, state-by-state.” He said on a Colorado TV station that he supports the right of states like Colorado to allow adult use marijuana, saying in contradiction to Sessions today, “I wouldn’t do that [using federal authority to shut down recreational marijuana] … I think it should be up to the states. Absolutely.” He said the same on a Detroit radio station in March of 2016.

Public opinion polls show the American people overwhelmingly support the same position, as well: 94 percent to 4 percent for medical marijuana in a 2017 Quinnipiac poll. In Gallup, 64 percent say marijuana should be legalized, and 61 percent in Pew Research polls. The STATES Act would legally resolve this issue in accordance with the will of the people.

Peter Ferrara teaches economics at Kings College in NY. He also serves as Senior Fellow for Legal Affairs at the Heartland Institute and Senior Policy Advisor to the National Taxpayer Limitation Foundation. He formerly served in the White House for President Reagan and as Associate Deputy Attorney General under President George H.W. Bush

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.