By Alex Jenson
The principal of Federalism is enshrined in the US Constitution, most notably in the Tenth Amendment, stating that all rights not given to the federal government are reserved for the states. However, ever since the civil war, there has been a gradual transfer of wide-reaching power to the federal government. This has occurred under the administration of both Democrats and Republicans, and reduces the extent to which US citizens are governed by individuals they can easily contact and hold responsible. There are many causes of this tendency towards the centralization of power, but the subject of this memo is where the reverse is true. Legalizing or decriminalizing marijuana flies directly in the face of established federal law (though I contend the grounds for the law are shaky). However, multiple states are doing so regardless. Currently, 33 states plus the District of Columbia permit recreational or medical marijuana. So what are the methods activists have used to popularize decriminalization? And why is the federal government largely unable to punish the states?
A significant reason for the recent ascendance of marijuana legalization is a cultural shift resulting from the aging out of older voters that are/were very opposed to drug legalization. As the United States moves forward, Gen Z and the Millennials, which support legalization by a wide margin, will become more and more relevant as voting blocs, while those opposed to legalization, such as the silent generation or the early baby boomers, are beginning to die/reduce in number. This has created a scenario where a ballot initiative that throws legalization to the people is a viable pathway to achieve legalization.
The ballot initiative is one of the most direct forms of democracy in the United States. In a ballot initiative, a policy or “initiative” is put on the ballot for an election, and the voter decides whether to support the measure or not. This takes power out of the hands of the state legislature and concentrates it with the people. Some may argue that this has the potential to degenerate into mob rule, but it also provides an avenue for politically unpopular reforms to pass into law. Vermont is the only state to legalize recreational marijuana via legislative bill. According to John Hudak, a fellow at Brookings, the ability to call for a ballot initiative is almost vital for legalization or decriminalization to occur. This is because the executive and legislative branches of government in states that have decriminalized or legalized often opposed decriminalization in the first place. While these campaigns can be expensive, it is possible to find wealthy backers to fight for and against each issue, and at the end, the only ones who are able to decide are the voters.
Finally, the US government is unable to stop the above from happening due to a combination of limited resources and the current interpretation of the “no commandeering clause.” Per Mr. Hudak, this clause prevents federal authorities from unilaterally requisitioning state resources, namely state police, in order to carry out law enforcement activities. In states where legalization or decriminalization has occurred, Hudak states that an executive is simply able to deny requests for state resources. This plays into the issue of resources. Some states are large, with large populations and the federal police force has more pressing concerns than stopping marijuana consumption. Thus, it is likely that if the DOJ is unable to allocate significant additional resources to marijuana enforcement, as more and more states legalize, there will be fewer and fewer federal officers per capita working on marijuana, making the federal law effectively unenforceable.
This provides a perfect example of how local and state action, especially in concert, can force back federal overreach on a multitude of issues, especially in social matters that should necessarily and constitutionally be the purview of the states. That the states have been able to flaunt the federal government with relative impunity on marijuana will likely not be missed by other governors and state legislators, perhaps prompting a new growth of independence by the states against unpopular or unwanted federal authority.