The voters of Washington state and Colorado have put the Federal government, especially President Obama, in a bind by legalizing (to varying degrees) marijuana. Article II of the Constitution requires the President to "take care that the laws be faithfully executed"--not just the laws the President likes, but all the laws. And the Supremacy Clause of the Constitution ensures that Federal law trumps state law, as that little kefuffle called the Civil War settled.
On the other hand, anyone with an ounce of sense can see the war against marijuana should never have been fought to begin with, and is now good as lost. Prolonging it only results in needless expense and human suffering.
What's a President with a conscience to do?
There's a reasonable, legal way out--recently, helpfully, and most ironically pointed out by Supreme Court Justices Scalia, Thomas, Kennedy, Alito, and Roberts.
The puzzle solved, over the fold.
The key is dealing with medical and non-medical marijuana separately.
Cannabis is currently on Schedule I of the Controlled Substances Act. That's the schedule for drugs with (supposedly) no medical value, and it carries the tightest restrictions. Schedule I drugs cannot even legally be prescribed.
The Controlled Substances Act has five schedules in total, with Schedule V carrying the least restrictions. Schedule V drugs are judged to have low potential for abuse, a currently accepted medical use, and to lead to only limited physical or psychological dependence. Drugs on schedules II through V can legally be prescribed, but cannot legally be obtained without a prescription.
The CSA gives the Attorney General authority, via a rulemaking process, to move cannabis from Schedule I to a different schedule. The Attorney General is, of course, a cabinet officer who answers to the President.
So President Obama could make marijuana a legal prescription drug nationwide by directing the Attorney General to reschedule it. No action from Congress needed.
Recall that the United States government has not unlimited powers, but only the specific powers enumerated in the Constitution. (Tea Partiers never cease to remind us of this, except when they're complaining the government doesn't do enough to regulate sex and reproduction.) Congress's power to do a lot of things we take for granted comes from the Commerce Clause, which gives it power to regulate interstate commerce. Since the New Deal the Supreme Court has interpreted the Commerce Clause quite broadly. For instance, in Wickard v. Filburn (1942) the Supremes held that a farmer who only grew wheat to feed his own chickens and cattle was nevertheless affecting interstate trade in wheat, because by not buying wheat he drove down the interstate market price just a smidgen. And a smidgen was enough to bring the farmer under the Commerce Clause.
But though Congress's Commerce Clause powers are great, they still have limits. Earlier this year, in National Federation of Independent Business v. Sebelius, the Supremes held Obamacare's individual mandate could not be authorized under the Commerce Clause, because--according to Justices Scalia, Thomas, Kennedy, Alito, and Roberts--not buying health insurance is not like not buying wheat. (The Obamacare individual mandate was upheld under the Tax Power instead. The difference led to one of the Great Screwups in Journalism.)
Well, guess what Constitutional power authorizes Congress to regulate drugs via the Controlled Substances Act? Yep--our buddy the Commerce Clause.
President Obama could announce:
In light of National Federation of Independent Business v. Sebelius, United States v. Lopez, and United States v. Morrison, I do not believe a person who grows or possesses a small amount of marijuana for personal use, or for noncommercial sharing with friends, affects interstate commerce. Therefore, I do not believe the Commerce Clause authorizes the United States government to regulate personal growth or possession of marijuana in small amounts. In consultation with the Attorney General, I am today directing the Justice Department, including the FBI and DEA, to cease investigating or prosecuting anyone growing six or fewer marijuana plants, or possessing less than one ounce of marijuana.Why is growing your own pot different from growing your own wheat (which was held to affect interstate commerce in Wickard)? Because the farmer was growing wheat to use in his business--which was raising chickens and cattle. As far as I know, nobody smokes pot professionally. At least not anymore; arguably Cheech and Chong made a go of it for awhile. If, in the happy future, a professional pot-smokers' league develops, well, we'll just have to cross that bridge when we come to it.
I got six plants and one ounce from Colorado's new law, which imposes those limits for recreational marijuana. So my proposed new Federal policy would, it seems, square nicely with Colorado.
Washington state is a different story. Under Washington's new law, you'll need a state license to grow or sell any amount of recreational marijuana, and the law envisions a state-regulated commercial network of producers, distributors, and retailers, analogous to what's done with alcoholic beverages. That would obviously violate the Controlled Substances Act, even under my proposed new interpretation. But a Washington license will cost $250 for the first year, and $1,000 per year after that; there are probably plenty of folks who would be willing to pay that for the ability to grow their own and enjoy it at home without worry. And let's face it, so long as a small percent of people do that, the Washington authorities aren't going to find it worthwhile to check every home garden for a license. So the envisioned commercial network might never develop, or would develop for medicinal pot only. (Why would any Washingtonian who could grow her own bother buying it with a prescription? Maybe to benefit from expert hybridization of a blend best suited to treat particular symptoms. Or maybe she'd just grow her own. For President Obama's purposes, it doesn't matter.)
But hold on a second, HeyMikey, some readers are no doubt muttering--you admitted the Constitution doesn't let the President pick and choose which laws to enforce; and the Controlled Substances Act, in all its minute-amounts-of-marijuana-regulating-glory, is a law. So how can the President choose to enforce it only partly? And the answer is that the Constitution is a higher law. For instance, the President has already directed the Justice Department to stop defending DOMA because he's concluded it's unconstitutional. (BLAG, which represents Republican members of Congress, is now defending DOMA.) He could do the same with the CSA as it pertains to personal, non-commercial marijuana.
There you have it--a way for President Obama to do both the right thing and the Constitutional thing. Truth, justice, and the American way.