During last night’s presidential debate, CNN’s Jake Tapper asked about marijuana legalization. The discussion—first directed to Kentucky Senator Rand Paul and then to others—created a fascinating glimpse into how varied the candidates’ positions are and how uncomfortable some contenders are on the topic. Even though only four candidates spoke, much was said about cannabis policy in the US. So, let’s review.
Rand Paul: The bold reformer
Sen. Paul may want his secret service code name to be “Justice Never Sleeps” but “Bold Reformer” may be a better fit. There is no presidential candidate who is more pro-marijuana reform than Rand Paul. In fact, there are few people in the entire US Congress who compare.
Last night, we saw how much Senator Paul saw marijuana policy as an opportunity. As I have written previously on this blog, marijuana policy is about much more than pot, and Senator Paul highlighted that last night. He used the policy to criticize the scope of federal power, noting “We say we like the 10th Amendment, until we start talking about this. And I think the federal government has gone too far…I don’t think that the federal government should override the states.”
He engaged criminal justice issues, arguing “the war on drugs has had a racial outcome, and really has been something that has really damaged our inner cities.” He spoke about marijuana policy in terms of healthcare and patient advocacy, invoking the case of a child who uses CBD oil for a seizure disorder.
He laid out a conservative’s case for supporting at least medical marijuana legalization and provided a basis for conservatives to support recreational marijuana, as well. Paul also spoke on the issue with confidence and aggression, weaving together anecdotes and criticisms in ways that made his counterparts look unprepared. Sen. Paul also demonstrated that the marijuana issue is important, bound to keep coming up, and is an area he is thoroughly comfortable discussing, especially if other GOP contenders eschew it.
There was, however, one area where the Senator’s rhetoric departed a bit from policy realities. He claimed that the 10th Amendment to the Constitution allows states to create their own legalization systems, even when they explicitly violate federal law. While this may be his hope and the hope of many drug policy reformers, it is not a reality under current Supreme Court precedent. In a 2005 case, Gonzales v. Raich, the Court declared that Congress had the power under the Article I to regulate (read: criminalize) marijuana. However, that ruling also affirmed that Congress had the power to let states do for themselves on this issue—something the Paul-supported CARERS Act seeks to do.
Jeb Bush: A confusing set of views
Governor Bush showed he is either unsure of or uncomfortable with his views on medical marijuana legalization. In many ways, he sounded like a drug warrior—opposed to recreational legalization and worried medical marijuana would create a slippery slope.
Yet, Bush also spoke in contradictory ways. In one moment he said marijuana legalization “should be a state decision” and in another lamented “the problem of drugs in this society,” declaring that “it is appropriate for the government to play a consistent role to be able to provide more treatment, more prevention.” It is unclear how those two arguments pair, and it was unclear from the debate whether Mr. Bush knows either. What was clear, however, was that despite medical marijuana being around for nearly 20 years and recreational marijuana being legal in four states and DC, Mr. Bush was ill-prepared to provide a coherent position on this topic. Many in the GOP would applaud a hardline position; many would applaud a reform agenda. It is hard to believe anyone applauded the policy amateurism Mr. Bush’s displayed when discussing marijuana.
Chris Christie: drug warrior
New Jersey Governor Chris Christie did not appear, at first glance, to offer a shaky position like Mr. Bush did. He was bold about shutting down recreational marijuana regimes in legalizing states. He framed his position not in the context of heartstring-pulling anecdotes, but explicitly in the context of the rule of law. He declared “I’ll enforce the federal law.”
However, one serious problem exists with Gov. Christie’s commitment to the rule of law on marijuana policy: he’s actually not that committed to it. He noted, “In New Jersey, we have medical marijuana laws, which I supported and implemented…I’m not against medical marijuana. We do it in New Jersey. But I’m against the recreational use of marijuana.”
Support for medical but not recreational marijuana may seem like a mainstream, defensible position, but it cannot be grounded in support for the rule of law. Federal law does not distinguish between medical and recreational marijuana. Under the Controlled Substances Act, cannabis is cannabis, whether you have a physician’s recommendation or not. If Mr. Christie wants to shut down Colorado’s recreational marijuana system because it violates federal law, he ought to shut down New Jersey’s medical marijuana system because it also violates that same federal law.
There is no doubt that Mr. Christie’s nuanced position on marijuana legalization is rooted less in grand legal philosophy and more in responsiveness to public opinion. (Though it should be noted nearly 60% of New Jersey residents support legalized, regulated recreational marijuana.) But Christie’s position is not unique, and it sheds light on a real challenge and disconnect that exists between politicians’ rhetoric and effective public policy. When politicians take the position that they believe will get them in the least trouble, policy is often the victim. There are numerous parts of federal marijuana policy that are inconsistent and contradictory. Positions like Mr. Christie’s do little to resolve these policy challenges and in many ways simply reinforce the confusion of the status quo.
Carly Fiorina: A (certainly) common voice of (likely?) opposition
When asked her position on marijuana legalization, Carly Fiorina invoked a painful, personal anecdote about losing a child to drugs. Some have been critical of the answer as connecting marijuana with other types of drugs. Admittedly her position was unclear. She noted that “drug addiction is an epidemic, and it is taking too many of our young people,” while claiming, “I agree with Senator Paul. I agree with states’ rights.” Like Mr. Bush, Ms. Fiorina’s position seems to be everything and nothing.
Yet, Ms. Fiorina’s position on the issue is less important than her answer to the question. She has dealt with drug use on a very personal level and has experienced its absolute worst consequence: the loss of a child. Whether it is appropriate to conflate that experience with choices over the legalization of marijuana is moot. There are hundreds of thousands of Carly and Frank Fiorinas out there who think about policies like marijuana legalization through that same lens. The reform movement may not like it; they may not think it is sound judgment; they may not think it is fair. Yet, it is real, and any candidate—for any office—who sees marijuana reform as a policy and/or political opportunity must recognize that for some, there is a painful and emotional aspect to this issue that will remain—regardless of how much aggregate public opinion shifts.