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Obama: Go ahead, states. Make marijuana legal!

Earlier this week, President Obama’s Department of Justice told the 50 states in our great union to feel free to make marijuana legal. The media reported that this was the administration’s new policy for “medical marijuana.” But the administration may have inadvertently opened up a loophole through which we can drive a truck-full of recreational marijuana.

Now before I get started here, let me make one thing clear. This is not a “camel’s nose under the tent” argument about how medical marijuana should be used as some kind of scam to pave the way for recreational use. No, medical marijuana is a completely legitimate issue on its own – and it is a completely legitimate medicine, for that matter. In the political debate about whether marijuana should be legal, it is completely rational to support medical marijuana, but oppose the legalization of marijuana for recreational purposes.

So what I am talking about here is not some “slippery slope” from medical marijuana to recreational marijuana. My purpose is to shed a little light on the laws involved and on state-federal relations.

Let’s start with the basics. States have controlled substances laws, as does the federal government. These laws co-exist, in the sense that both state and federal authorities have the ability to arrest and prosecute individuals for violating them. In most instances, individuals are in violation of both state and federal law when it comes to controlled substances and it simply becomes a question of under which laws a person will be prosecuted. But if a state law is silent with respect to a certain controlled substance, the federal government still has the ability to arrest and prosecute individuals for possession or sales of that substance within that state.

The new Justice Department guidance does something somewhat unusual. It essentially defers to state controlled substances laws. In a memo to all US Attorneys, the Deputy Attorney General wrote: “As a general matter, pursuit of these [anti-drug] priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

Sure, this seems like a rational and compassionate move. And perhaps it is even politically smart, as approximately three-quarters of Americans support the medical use of marijuana. What makes this directive especially interesting, however, is the fact that the federal government does not recognize marijuana as a medicine. Marijuana, under the federal Controlled Substances Act, is listed under Schedule I, a schedule reserved for substances with “no accepted medical value.” In other words, “medical marijuana” doesn’t exist in the eyes of the federal government; there is only “marijuana.”

This means there are two ways of looking at what the Obama administration has done. First, it has acknowledged that marijuana has an “accepted” medical value in this country. Accordingly, it should immediately takes steps to have marijuana re-scheduled, which would help facilitate much-needed research on the therapeutic benefits of the drug. It would also allow individuals prosecuted by the federal government for marijuana-related crimes to introduce evidence in court that they were acting in compliance with state medical marijuana laws. Such evidence is currently not permitted in federal court.

The second way of looking at it is even more interesting. Since the federal government does not recognize that marijuana has medical value, the administration has basically told the states that they can enact their own laws related to marijuana and the federal government will not interfere. If you think this sounds far-fetched, read this excerpt from the memo to the US Attorneys:

“Finally, nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law.”

There you have it. As long as the production or distribution of marijuana is authorized by state law, then there should be no prosecutions. Note, as well, the use of “purposes” — plural — which could be inferred as covering more than just medical reasons.

So let’s get to it. It is time to lobby the states to make marijuana legal for all adults. There used to be a fear in some quarters that such a change in the law would not be a worthwhile endeavor because the federal government, in theory, would eventually get in the way. But unless the administration wants to admit that “medical marijuana” exists, it looks like the states are free to change marijuana laws in whatever way they deem necessary to protect the health and safety of their citizens.

Establishing regulated systems for the production and distribution of marijuana would do just that.

Steve Fox is the co-author of Marijuana is Safer: So why are we driving people to drink? (Chelsea Green, August 2009) and the director of state campaigns for the Marijuana Policy Project.

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