OPINION: Marijuana Federalism Won In The 2018 Midterms

Brian Darling Liberty Government Affairs
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While the nation was gripped by House, Senate and governor races, there was another important contest on the ballot in Tuesday’s midterms related to the future of adult-use and medical-use marijuana. With several ballot initiatives in states that would liberalize laws on marijuana, it was a great day for the idea of federalism in marijuana laws.

Federalism is a core value of America. It is the idea that states, not the federal government, hold powers that are not specifically enumerated to the feds. Police powers have traditionally resided in states and with local officials, yet the federal government has slowly creeped into the law enforcement business when it comes to all forms of crime.

The history of marijuana regulation started with states outlawing the drug early last century, before the issue was federalized with passage of the Controlled Substances Act (CSA) in 1970.

As Americans have become more accepting of medical uses of the drug and allowing responsible use by adults, states have passed laws that have changed the law to allow different uses for marijuana.

The polling going into election day showed that the American people are becoming more accepting of differing levels of marijuana federalism. The Pew Research Center released a poll on Oct. 8 indicating that 62 percent of all Americans supported legalizing marijuana. The results on election day confirm the shift of the American people to support that idea.

A number of state initiatives on the ballot allowed different levels of legalization of the use of marijuana. Michigan was a big test case with an initiative to legalize adult use marijuana on the ballot. That vote was on the idea that anybody over 21 could possess marijuana and the state was empowered to set up a regulatory framework for growers and retailers. In Michigan Proposition 1 passed with significant support. A state as large as Michigan has followed the lead of California, Colorado and seven states that have allowed adults to use marijuana.

North Dakota was another test with a measure that expanded medical marijuana laws to allow anybody 21 or over to be allowed to use marijuana and, according to Forbes, “would have set no limit on the amount of marijuana that people could possess or cultivate” and mapped out no rules or regulations for the industry. That initiative was a bridge too far for the voters of North Dakota, yet two other states voted to allow medical marijuana. Utah had a medical marijuana initiative pass and becomes one of the most conservative states to adopt a liberalized approach to marijuana as medicine. In Missouri, there were three ballot initiatives that allowed medical marijuana, and at least one of those passed.

One important aspect of protecting federalism in marijuana laws is the candidates the people send to Washington. One race that had the potential to impact the future of marijuana legislation was the race between Rep. Pete Sessions (R-Texas) versus Colin Allred. Sessions is very anti-marijuana federalism and used his position as chairman of the House Rules Committee. Sessions to block votes protecting states that allowed medical marijuana. Sessions lost and many think his strong stance against allowing votes to protect state that have passed medical marijuana laws hurt him.

The big fight going into 2019 will be over something called the STATES Act. With divided congressional power between the Republican-controlled Senate and the Democratic-controlled House, there will be some opportunity for bipartisanship on a limited number of issues. The STATES Act may be one. That legislation would protect individuals in the “manufacture, production, possession, distribution, dispensation, administration, or delivery” of marijuana from federal prosecution.

In the Senate, this bill has support from conservative Sens. Cory Gardner (R-Colo.) and Rand Paul (R-Ky.), in addition to progressive Sens. Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.). The House version has support from Republican Reps. David Joyce (R-Ohio), Ken Buck (R-Colo.), Justin Amash (R-Mich.) and Thomas Massie (R-Ky.), in addition to Democrat Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.). This is one of the few bipartisan issues that has a chance to pass in a divided Congress.

Although it was not such a great day for many incumbent politicians, it was a great day for marijuana federalism. Politicians should take note and support the STATES Act and other initiatives that protect banking and individuals from federal bullying on the issue when the Justice Department has taken such a strong stand against this idea.

Although Attorney General Jeff Sessions has fought to continue the federal war on marijuana, former White House Communications Director Anthony Scaramucci proclaimed just before the election, “I think he (President Trump) is going to legalize marijuana” after the midterms.

That would be a smart, and popular, move.

Brian Darling is a former staffer for Sen. Rand Paul (R-Ky.) and founder of the D.C. based firm Liberty Government Affairs.

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