The Washington PostDemocracy Dies in Darkness

Two thirds of Americans want Congress to grant states a “safe haven” from federal marijuana enforcement

Congressional grinches don't want DC residents putting pot under their Christmas trees. Polls suggest they may want to reconsider. REUTERS/Rick Wilking

Americans overwhelmingly want the federal government to keep its hands off of state-level marijuana regulations.

That's one of the conclusions of a survey on marijuana legalization recently commissioned by Third Way, a centrist think tank. Similar to other recent polling, the survey found Americans split on the question of full legalization, with 50 percent supporting versus 47 percent opposed. But the poll found that six in ten respondents said that states, and not the federal government, should decide whether to legalize marijuana. And 67 percent of Americans said Congress should go further and specifically carve out an exemption to federal marijuana laws for states that legalize, so long as they have a strong regulatory system in place.

In short, there's a lot of nuance here. "Even 21% of those opposed to legalization for recreational use still agreed Congress should pass" a waiver policy for the legalization states, according to the report. The waiver approach isn't without precedent: Congress issues waivers to states all the time.

"Waivers are a nice way for the federal government to acknowledge that they can't do everything they want, but that ensure that the goals of the law are not lost," according to John Hudak of the Brookings Institution. Education, the environment and health care policy are all fertile ground for waivers: "We have sort of waivers with these Affordable Care Act programs in red states, where they’re coming up with their own modified version of it. Where the state designs a system that fits its own needs, but is still generally consistent with federal law and regulations," Hudak says.

How this would work for marijuana is detailed in an exhaustive forthcoming study in the UCLA Law Review. In short, Congress could allow states to opt out of the Controlled Substances Act provisions relating to marijuana, provided they comply with regulatory guidelines issued by the Department of Justice.

This is already the de-facto federal policy toward Washington, Colorado, and other states that have recently legalized marijuana. But it can't become a formal policy without an act of Congress. Third Way heartily endorses this approach, as it represents a (wait for it) third way between the current federal policy of outright prohibition, and the full legalization route favored by marijuana reform activists.

Among other benefits, such an approach would allow banks to do business with marijuana businesses without fear of federal prosecution -- as things currently stand, many marijuana businesses operate on a cash-only basis. And paradoxically, formalizing the federal government's stance on state-level sales could actually strengthen the Department of Justice's hand when it comes to enforcement. "If you formalize this policy," Brookings' Hudak says, "it empowers the federal government to take a hands-on approach." It's easier for authorities to identify and penalize bad actors if they have crystal-clear guidelines regarding regulation.

This approach would fly directly in the face of the major international treaties dealing with how countries enforce their drug laws. But the State Department is already playing it fast and loose with how it interprets those treaties, and Hudak thinks that Congressional Republicans would be all to happy to flout international law when it comes to a relatively popular domestic issue.

On the other hand, current reports indicate that anti-pot hardliners in the House have succeeded in thwarting DC's plans to adopt a fully legal marijuana market following the Colorado model, by sneaking riders into a must-pass spending bill. Legalization proponents and DC residents are outraged, but more to the point this is a stupid move politically. The Third Way survey shows that two thirds of Americans want Congress to facilitate local marijuana measures, not obstruct them. Legislators defy this imperative at their own peril.