Federalism has Gone to ‘Pot’

Member Group : Gregory Archetto

In this era of political enmity on demand, you can be forgiven for missing a bipartisan bicameral bill introduced this summer by Sen. Cory Gardner, Colorado Republican, Sen. Elizabeth Warren, Massachusetts Democrat, Rep. David Joyce, Ohio Republican and Earl Blumenauer, Oregon Democrat. The Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act) ensures that each state has the right to determine for itself the best approach to marijuana within its borders.

As you may be aware, there are many states (46, in fact) that have enacted various laws that either decriminalize, make exceptions for, or outright legalize medical and/or adult use marijuana, often in contravention to current federal law. The STATES Act removes the cumbersome legal uncertainty regarding conflicts between this mishmash of state laws and federal law by amending the Controlled Substances Act (CSA) so that its provisions no longer apply to any person acting in compliance with state laws related to marijuana.

Some federal criminal exceptions remain (age restrictions for consumption/distribution, endangering human life) but the proposed law states that compliant transactions would not be considered “trafficking” as it pertains to the federal criminal code, and it would also remove industrial hemp from the list of controlled substances.

While popular support for legalization is at record highs, plenty of bipartisan organizations have backed it, and even President Trump during the campaign seemed to be on board with such a proposal. Attorney General Jeff Sessions remains in the D.A.R.E. era. However, he does have the law on his side. But as history tends to show, just because it is the law doesn’t mean it is right.

The CSA is a law, like many crafted in this country over the decades, that flouts the concept of federalism in the name of political expediency. Most people are unaware that there are only three crimes outlined in our U.S. Constitution: Piracy, treason and counterfeiting. Does that mean our Founding Fathers did not believe in punishing murder, robbery, assault, etc? Of course not, but it was not something that they felt absolutely needed to be handled at the federal level and even if they did, they didn’t have the resources to police it properly during the era when the Constitution was crafted.

The “powers reserved to the States respectively, or to the people” reflect subsidiarity — the idea that most social and political issues should be dealt with at the most immediate or local level.


This acts as a “vertical” set of checks and balances on government, just as the three branches (executive, legislative, judicial) act as a horizontal one. But that only works if the number of laws dwindles the further up the ladder you go. Unfortunately, the average person commits three felonies a day without knowing it, showing that our federalist system is deeply out of whack.

The conflict between federal and state laws on marijuana highlights this issue perfectly. Staying the current course of creeping nullification of this federal law by the states will further foment uncertainty in an already vitriolic political environment, promote the appearance of selective and arbitrary enforcement of laws by incompetent or ambitious prosecutors/district attorneys, and further diminish the already waning respect for the rule of law writ large.

From a practical perspective, the known benefits of tetrahydracannabinol (THC), the active ingredient in marijuana, have a significant positive effect on many ailments, such as glaucoma, seizures, and even post-traumatic stress disorder (PTSD). Removing the stigma associated with the continued illegality of marijuana at the federal level will help shrink the existing black market for the drug even further, thus alleviating the crime and violence associated with the prohibition of anything for which there is a significant and profitable demand.

It will allow small businesses in this burgeoning industry to have access to proper banking services. Currently, this is a mostly cash business, as banks are wary of dealing with anything that falls afoul of federal laws. Cash businesses tend to have two major drawbacks; they attract crime and facilitate tax evasion. Legitimizing the business aspect of marijuana use will not only further weaken organized crime and the cartels, but overall will free up federal law enforcement resources to be redirected to more pressing issues such as terrorism and lessen the burden on the criminal justice/prison system.

In the fight to restore faith in federalism, Congress should immediately pass and President Trump should sign the STATES Act.

• Greg Archetto was a foreign affairs officer at Bureau of Political Military Affairs at the State Department and a security assistance officer at the Defense Security Cooperation Agency, Office of Secretary of Defense.