Skip to main content

U.S. should honor states' new pot laws

By Mark Osler, Special to CNN
November 13, 2012 -- Updated 1736 GMT (0136 HKT)
A woman hand rolls joints in San Francisco for a medical cannabis cooperative.
A woman hand rolls joints in San Francisco for a medical cannabis cooperative.
STORY HIGHLIGHTS
  • Colorado and Washington legalized recreational use of pot but it's illegal under federal law
  • Mark Osler: Two ideologies clash over whether U.S. should override new state laws
  • Osler: Federalists say state laws must rule; moralists say we need national drug laws
  • U.S. must honor states, he says; federalism is in Constitution, pot opposition is not

Editor's note: Mark Osler is a professor of law at the University of St. Thomas Law School in Minnesota and is a former federal prosecutor. He is the author of "Jesus on Death Row," a book about capital punishment.

(CNN) -- The residents of Colorado and Washington state have voted to legalize the recreational use of marijuana, and all hell is about to break loose -- at least ideologically. The problem is that pot is still very much illegal under federal law, and the Obama administration must decide whether to enforce federal law in a state that has rejected the substance of that law.

What makes this development fascinating is that it brings into conflict two important strains of political thought in America: federalism and moralism.

Federalists, who seek to limit the power of the federal government relative to the states and individuals, will urge a hands-off approach. Moralists, on the other hand, strongly believe in the maintenance of an established social order and will argue for continuing enforcement of federal narcotics laws.

Mark Osler
Mark Osler

The new laws will pit those who want a small federal government that leaves businesses and individuals alone against those who want the government to actively enforce a traditional sense of public morality in areas such as narcotics, abortion and limitations on gay marriage.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



One aspect of this conundrum is the near-total overlap between federal and state narcotics laws.

Simple possession of marijuana is made into a federal criminal case under 21 U.S.C. Section 844, and federal law oddly categorizes marijuana as a Schedule I narcotic, along with heroin and mescaline -- even as cocaine and opium remain on the less-serious Schedule II. While federal law typically won't provide jurisdiction over a street robbery or even a murder, it does allow federal courts to imprison someone for carrying a small bag of marijuana, even when state law says otherwise.

Opinion: The end of the war on marijuana

Federal and state efforts to curb marijuana use through prosecution simply haven't worked.

Future of pot in Colorado hazy
Legalized marijuana: A good idea?

In 2010, four out of five of the 1.64 million people arrested for drug violations were accused of possession, and half of those arrests were for carrying what were often very small amounts of marijuana. Those hundreds of thousands of drug cases corresponded with an increase in marijuana use. If federal policy were about problem-solving, Colorado would not pose a dilemma, because prosecuting marijuana cases hasn't solved the problem of marijuana use.

Federal drug policy, though, is very much driven by moralism rather than problem-solving.

After all, we have spent billions of dollars -- about $20 billion to $25 billion a year during the past decade -- and incarcerated tens of thousands of people to punish drug possession and trafficking without ever successfully restricting the flow of marijuana or cocaine.

If we think tough drug laws solve the problem of drug use, we are deluding ourselves. Rather, what sustains the effort is the bedrock belief that drugs are bad, and we must punish those who sell them or use them. Mass incarceration is justified by the belief that those we lock up simply deserve it. That sense of retributive morality does not stop at state borders.

Federalism, though, demands that individual and state rights be honored above all but the most important federal imperatives.

Should marijuana be legal? Readers debate pot laws

We are not a unitary state like many European nations, and part of the genius of the American experience is the delicate balance between federal and state powers desired by those wise men who crafted the mechanics of our government.

The difference between federalism and the kind of moralism driving national narcotics policy is simply this: Federalism is a central principle built into the structure of our government through the Constitution. Abhorrence of marijuana use is not such a defining principle. To be true to our best values, federalism should win out.

No doubt, the moralists will consider the regulations on marijuana "too important" to bow to federalism concerns, but their sway is limited. Our recent elections show the moralists to be in decline, as those who fought limits on gay marriage won across the board at the same time that marijuana was legalized.

As a federal prosecutor, I had the privilege of representing the United States and a role in employing the singular power of prosecutorial discretion. The Obama administration should employ that discretionary power in line with our oldest and best principles and step back from continuing marijuana prosecutions in Colorado and Washington.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions in this commentary are solely those of Mark Osler.

ADVERTISEMENT
Part of complete coverage on
October 22, 2014 -- Updated 2101 GMT (0501 HKT)
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
October 23, 2014 -- Updated 1619 GMT (0019 HKT)
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
October 21, 2014 -- Updated 2235 GMT (0635 HKT)
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
October 26, 2014 -- Updated 0148 GMT (0948 HKT)
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
October 23, 2014 -- Updated 2208 GMT (0608 HKT)
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
October 23, 2014 -- Updated 2154 GMT (0554 HKT)
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
October 24, 2014 -- Updated 1621 GMT (0021 HKT)
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
October 21, 2014 -- Updated 2006 GMT (0406 HKT)
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
October 23, 2014 -- Updated 1414 GMT (2214 HKT)
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
October 21, 2014 -- Updated 1600 GMT (0000 HKT)
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
October 21, 2014 -- Updated 1135 GMT (1935 HKT)
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
October 21, 2014 -- Updated 1312 GMT (2112 HKT)
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
October 21, 2014 -- Updated 1851 GMT (0251 HKT)
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
October 21, 2014 -- Updated 2207 GMT (0607 HKT)
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
October 20, 2014 -- Updated 1329 GMT (2129 HKT)
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
October 20, 2014 -- Updated 2012 GMT (0412 HKT)
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
October 20, 2014 -- Updated 0336 GMT (1136 HKT)
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
October 20, 2014 -- Updated 1223 GMT (2023 HKT)
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
October 20, 2014 -- Updated 0221 GMT (1021 HKT)
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
October 22, 2014 -- Updated 1205 GMT (2005 HKT)
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
October 20, 2014 -- Updated 1300 GMT (2100 HKT)
The world's response to Ebola is its own sort of tragedy, writes John Sutter
October 17, 2014 -- Updated 2033 GMT (0433 HKT)
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
October 18, 2014 -- Updated 1722 GMT (0122 HKT)
When you hear "trick or treat" this year, think "nudge," writes John Bare
October 18, 2014 -- Updated 0442 GMT (1242 HKT)
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
October 17, 2014 -- Updated 1345 GMT (2145 HKT)
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
October 16, 2014 -- Updated 2043 GMT (0443 HKT)
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
October 18, 2014 -- Updated 0858 GMT (1658 HKT)
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
October 17, 2014 -- Updated 1342 GMT (2142 HKT)
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
October 17, 2014 -- Updated 1221 GMT (2021 HKT)
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
October 16, 2014 -- Updated 2027 GMT (0427 HKT)
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
October 16, 2014 -- Updated 0407 GMT (1207 HKT)
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
October 15, 2014 -- Updated 1153 GMT (1953 HKT)
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
October 16, 2014 -- Updated 0429 GMT (1229 HKT)
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
October 20, 2014 -- Updated 1653 GMT (0053 HKT)
Paul Callan says the Ebola situation is pointing up the need for better leadership
October 15, 2014 -- Updated 2245 GMT (0645 HKT)
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
October 15, 2014 -- Updated 1700 GMT (0100 HKT)
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
October 15, 2014 -- Updated 2301 GMT (0701 HKT)
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
October 14, 2014 -- Updated 1744 GMT (0144 HKT)
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
October 18, 2014 -- Updated 1335 GMT (2135 HKT)
Stop thinking your job will make you happy.
October 15, 2014 -- Updated 0208 GMT (1008 HKT)
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
October 14, 2014 -- Updated 1125 GMT (1925 HKT)
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
October 13, 2014 -- Updated 1303 GMT (2103 HKT)
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
October 14, 2014 -- Updated 2004 GMT (0404 HKT)
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
October 13, 2014 -- Updated 1307 GMT (2107 HKT)
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
October 13, 2014 -- Updated 2250 GMT (0650 HKT)
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
October 11, 2014 -- Updated 1543 GMT (2343 HKT)
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT