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
December 27, 2014 -- Updated 0127 GMT (0927 HKT)
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
December 26, 2014 -- Updated 1617 GMT (0017 HKT)
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
December 26, 2014 -- Updated 1319 GMT (2119 HKT)
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
December 26, 2014 -- Updated 1505 GMT (2305 HKT)
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
December 26, 2014 -- Updated 1303 GMT (2103 HKT)
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
December 27, 2014 -- Updated 2327 GMT (0727 HKT)
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
December 25, 2014 -- Updated 0633 GMT (1433 HKT)
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
December 23, 2014 -- Updated 2312 GMT (0712 HKT)
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
December 24, 2014 -- Updated 1336 GMT (2136 HKT)
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
December 24, 2014 -- Updated 1914 GMT (0314 HKT)
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
December 23, 2014 -- Updated 2027 GMT (0427 HKT)
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
December 24, 2014 -- Updated 0335 GMT (1135 HKT)
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
December 23, 2014 -- Updated 1257 GMT (2057 HKT)
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
December 23, 2014 -- Updated 0429 GMT (1229 HKT)
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
December 23, 2014 -- Updated 2115 GMT (0515 HKT)
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
December 23, 2014 -- Updated 1811 GMT (0211 HKT)
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
December 22, 2014 -- Updated 1808 GMT (0208 HKT)
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
December 20, 2014 -- Updated 1853 GMT (0253 HKT)
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
December 20, 2014 -- Updated 2019 GMT (0419 HKT)
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
December 22, 2014 -- Updated 2239 GMT (0639 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT