Morris: Pot Legalization Redefines Federalism
by Leo Morris
I’ve read every story – and there are a ton of them – about the excitement of a Republican lawmaker proposing to make medical marijuana legal in Indiana and the drama of the Indiana Association of Prosecuting Attorneys vehemently opposing the idea.
In only a couple of the stories did I see a lone sentence, buried deep within the copy, to the effect that “federal law still considers marijuana illegal.” That was the only hint to readers that this issue might be more than a simple yes or no decision by one state legislature. And nowhere in all the thousands of words of copy did I see the term “federalism” to help explain what is going on.
So perhaps a little remedial civics education is in order.
When the Founders sat down to draft the Constitution they of course wanted to avoid the kind of unitary system of government that England had imposed, one in which a central authority dictated everything. And they wanted to improve on the deficiencies of their own confederation, in which states had so much power the central government was powerless. So they created a federalist system, designed to balance the powers of two roughly equal forces, the federal government and the various state governments.
They distrusted central power, so the states were given the upper hand. The federal government was to have only the few powers specifically spelled out in the Constitution, and all other powers were reserved for the states or the people. This is known as “dual federalism,” but it has been called “layer-cake federalism” because state and federal governments had distinct powers that did not overlap. This is the version for which constitutional purists pine when they get all weepy over the 10th Amendment.
But everything evolves, and federalism has gone through many iterations.
The Civil War and resulting three constitutional amendments turned the Founders’ intent on its head and made it clear that, although “roughly co-equal” might still hold, the federal government was now the managing partner. This paved the way for Franklin Roosevelt’s New Deal and the second iteration, “cooperative federalism” in which it was determined that everyone had to work together on critical national problems, meaning basically that the federal government muscled in on formerly state prerogatives. This has been called “marble-cake federalism” because it was difficult to determine where one set of powers left off and the other set began.
The third iteration came from Lyndon Johnson’s Great Society programs. Under “creative federalism,” the federal government bypassed any pretense of consultation with the states and started dictating to cities and counties as well. Some have called this “picket-fence federalism,” with the vertical pickets representing social programs and the horizontal slats representing all levels of government working together. But I like the cake metaphor, so I prefer to call it “takes-the-cake federalism,” in which Washington slices up the cake of which it has taken sole ownership and hands out the pieces anyway it pleases.
“New federalism,” an attempt to turn back the constitutional clock by Presidents Nixon and Reagan with things like revenue sharing, block grants and a concept ambitiously called the “devolution revolution,” was all but an abject failure. Call it “crumbs-on-the-floor federalism,” in which the states grabbed up a few pitiful morsels and declared a great victory. Any progress made was wiped out and then some by George W. Bush with federal aggrandizements like No Child Left Behind and the Patriot Act. This was the “put those crumbs back down, kid” phase.
Which brings us to the present and that simple “federal law still considers marijuana illegal” sentence. What we have now, initiated by President Obama and as yet undiluted by President Trump, is “have-your-cake-and-eat-it-too federalism.” The federal government still has control but tells states to pretend that it doesn’t.
There might be a better way to cultivate a disrespect for the very idea of law but offhand I can’t think of it.
When it comes to marijuana, this iteration of federalism has created what one wit has called “Schrodinger’s Weed” – legal and illegal at the same time. So far, 29 states have approved some form of medical marijuana, and eight have made it a legal recreational drug, despite the fact that the federal government still classifies it as a Schedule 1 drug just like heroin and LSD.
Legal profits are already in the billions for an enterprise on a shaky foundation that could be toppled in a heartbeat by Attorney General Jeff Sessions, a fierce anti-drug warrior from the old school. (Actually, what Sessions told senators was that it was not his job as attorney general to decide which laws to ignore and which to prosecute and if they wanted marijuana off the federal list, they had the power to do so. What a concept.)
I admit to being ambivalent about marijuana. Indiana’s prosecuting attorneys vastly overstated the drug’s dangers, but its proponents also greatly exaggerate its harmlessness and potential benefits.. Legalizing it would be neither a catastrophe nor a great blessing. The results would be mixed, and only a few year’s history would tell us if the benefits outweighed the harmful effects. It’s exactly the kind of issue for which some states will want to rush in and some will want to hang back and see what the evidence shows. It is also the kind of issue the Founders would have left to the states, since the only way to justify a federal intrusion is a ridiculously expansive interpretation of the Constitution’s commerce clause.
Which, alas, the Supreme Court has given us. In 2005’s Gonzalez vs. Raich, the court ruled that even marijuana that is home grown for medicinal-use personal consumption can be criminalized because it might somehow make its way into illicit markets and end up crossing state lines. That ruling has not been superseded.
So this is how federalism works these days. Some brave states like Oregon and Washington rush in, betting that before the Supreme Court or Justice Department drops the hammer, they can create a tipping point of marijuana acceptance that will make federal re-engagement untenable. And some states, like, of course, Indiana, will hang back and wait to decide if that’s a train they want to jump on or a potential wreck from which they want to stay out of the way.
Piece of cake.
Leo Morris, columnist for The Indiana Policy Review, is a veteran of 40 years in Indiana journalism. As opinion editor of the Fort Wayne News-Sentinel, Morris was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at firstname.lastname@example.org.