By Edward Schumacher-Matos
Thursday, October 21, 2010;
Another federal-state showdown is brewing, but this one has nothing to do with immigrants. It has to do with pot.
Californians may very well vote in November to legalize recreational marijuana, though the Obama administration, Republican Gov. Arnold Schwarzenegger and others in the political establishment are trying to scare them off by warning that legalization violates federal law.
While late-night comedians have been having a field day with the pot measure, it arguably would have more profound effects on the nation's social and criminal policy than will who wins the midterms, an election that certainly has more genuine elements of looniness.
President Obama opposes legalization. Attorney General Eric Holder, in a letter to nine former heads of the Drug Enforcement Administration who have been lobbying against the measure, wrote that: "We will vigorously enforce the [federal Controlled Substances Act] against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law."
But Californians shouldn't back down. They should vote yes on Proposition 19 and lead the nation out of the morass created by prohibition that has been so costly in lives, taxes and personal freedom.
There are good arguments against legalization. It could lead to more pot use, especially among young people. New breeds of marijuana get stronger, and abuse of them affects health. Many users of more powerful drugs started with pot. Criminal gangs will continue selling other drugs, so legalization won't get them off the streets.
But so much in life is a balancing act. To my thinking, the costs of prohibition are much higher than the risks of legalization.
Nearly half of all Americans have smoked pot; almost all are doing just fine. Abuse of alcohol and so many other things has equal or worse health effects. The strength of marijuana can be regulated. And you have to start somewhere in taking the profit out of drugs and shrinking the size, power and violence of drug gangs.
This latter point is key. California offers a chance to experiment with one drug in one state. Pot is semi-legal there anyway. Laws allowing "medical marijuana" use are widespread, and last month Schwarzenegger signed a law downgrading possession of less than an ounce from a misdemeanor to an infraction -- making it like a traffic ticket.
The conflict between state and federal law could create legal chaos -- but only if both sides make it so.
Proposition 19 calls on the state essentially to ignore federal law when it comes to marijuana. Both the federal and state governments would continue to target traffickers of other drugs. The federal government could go after small-time pot consumers, growers and sellers, but it doesn't have the street resources for much of that. Washington already looks the other way on medical marijuana.
In the Arizona immigration case, the administration sued to stop the implementation of a law in which the state tried to actively do something that was a federal responsibility. The California case would involve a state trying not to enforce a federal law. It is unclear how far Washington can go in forcing it to do so.
In a 1992 case pitting the federal government against New York over implementation of federal radioactive waste regulations, the Supreme Court ruled: "We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the states to require or prohibit those acts."
Washington can't "commandeer" a state, the court said, though the precise limits of federalism remain a work in progress.
Few remember that the end of alcohol prohibition began with states. A dozen voted to amend or repeal their prohibition laws before the federal government finally did.
The maddening beauty of American federalism is that states are left to experiment on many things in what is a national cauldron of government creating best practices. Obama would do well to hold the administration's fire and seek to collaborate with California voters on drug-use solutions.