Anytime now, Attorney General Eric Holder is expected to make an announcement about marijuana, one of the administration’s trickier policy problems. In November, two states, Colorado and Washington, passed ballot initiatives — by strong margins — to legalize marijuana use. Both states established regulatory systems akin to those for alcohol, though Washington’s is somewhat more stringent. And both states acted in defiance of federal marijuana policy: The 1970 Controlled Substances Act makes marijuana illegal and places it in the same class as heroin.
How should the administration respond to this frontal challenge? The answer is: View it not as a threat but as an opportunity.
Many drug warriors disagree. They want the federal government to threaten state-licensed marijuana growers and distributors, and their bankers and landlords, with criminal enforcement. Several former directors of the Drug Enforcement Administration recently called on President Obama to launch a lawsuit preempting the states’ actions, much as he did in challenging Arizona’s immigration law a few years ago. (The Supreme Court delivered a mixed ruling on that challenge.)
Squashing the states, however, is easier said than done. All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law. Although states cannot break federal law, neither must they step in and enforce it. Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers. But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power. The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.
The chaos that might result would be counterproductive even (or especially) for drug hawks. Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders.
There is another, more positive, case for cooperation as well. It is best understood by looking at the lessons of same-sex marriage.
In a number of important respects, marijuana legalization and same-sex marriage track closely. Both are controversial social issues about which public opinion has changed dramatically in the past few years; on both issues, polls show the public closely divided but tipping toward legalization.
Moreover, for both issues, young people are driving the trend; older opponents of legalizing both are exiting the scene. The issues’ demographics suggest that public opinion is virtually certain to continue shifting. A true national consensus, however, remains some distance away, and partisan and regional differences are sharp.
In recent years, the country has pushed many controversial issues — abortion, crime, education — up to the federal level. But same-sex marriage has taken the opposite path, with leadership left to the states. The result, though somewhat messy as policy, has been a remarkable political success at a time when the country has few to boast of. That some states could try same-sex marriage without betting the whole country reduced the stakes and contained the conflict. States’ experiments with gay marriage educed valuable information about its real-world consequences, or lack thereof, allowing for a better-informed, more rational debate.
Above all, localizing the dispute gave people across the country time to work out what they think and to adjust policies as public opinion changed. Had the country locked in a federal constitutional amendment banning gay marriage in the mid-2000s, policy and public opinion would today be drifting inexorably into conflict.
State leadership on marijuana policy has all of the same advantages as on marriage. It contains conflict by reducing the stakes; educes knowledge about what happens if marijuana policy is changed; and allows incremental adjustment to social change. For the federal government, yielding some measure of control over marijuana policy to the states is not a threat; it is an opportunity to manage change and preserve options. Painting federal policy into a corner serves no one, not even drug warriors.
There is, however, an important difference between marriage and marijuana. States have run family policy since colonial times; letting them lead on marriage was the default option. Marijuana will be much harder. The federal government has led the war on drugs for decades, and its ban on marijuana is written into not just federal statute but also into several international treaties as well.
Avoiding a state-federal train wreck over marijuana policy will not happen automatically. Finding a cooperative path requires creativity and energy from both levels of government. But the alternative won’t satisfy anyone, at least not for long.
Editor's note: This article by Jonathan Rauch originally appeared in the Washington Post. He is the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.”