California Might Legalize Marijuana: What Are The Feds To Do?

It looks like Proposition 19 has a very real shot at passing in November. In case you haven’t been following the news, Proposition 19 is a California ballot measure which would legalize the recreational use of marijuana in that state. It would also legalize the sale and cultivation of marijuana for recreational use, while allowing local governments to grant licenses to retailers to sell marijuana, and to tax sales of the drug.

If this passes, it will be a true game-changer for national drug policy. The federal government already seems to be preparing for Proposition 19’s passage: Attorney General Eric Holder recently announced that the Justice Department would continue to enforce federal laws against marijuana, no matter what the voters of California decide.

This is certainly not a surprising response: in 2005, the U.S. Supreme Court ruled that it is constitutional for the federal government to enforce federal anti-marijuana laws anywhere in the U.S., even in states that have legalized medical marijuana, so there’s no doubt that the federal government has the constitutional authority to do this.

But if Prop 19 passes, the practical consequences for ordinary Californians are difficult to predict. The vast majority of drug busts are conducted by state law enforcement. While the federal government is also heavily involved in the enforcement of drug laws, it usually focuses on larger-scale dealers and traffickers, as opposed to users, of drugs. It also relies heavily on cooperation from state authorities.

So, what would the federal government’s options be if Proposition 19 passes? Well, it has a few options, but I doubt it finds any of them particularly attractive. Let’s go over them one by one.

1) Step up federal enforcement in California

This is the most obvious approach: if marijuana is legal in California, thus preventing state authorities from cooperating with the feds, the federal government can simply divert more enforcement resources to California to fill in the gap. While the DEA and FBI already have a significant presence in California, it’s likely that a huge increase in personnel would be needed to completely fill in the enforcement gap left by Proposition 19.

As you might be aware, the federal government is kind of strapped for cash. Its resources are finite. Under the Bush Administration, the Justice department vowed to vigorously prosecute everyone who sells marijuana, even if they’re selling for medicinal use, in accordance with state law. Well, medical marijuana dispensaries in California operated relatively unimpeded during those years. Sure, the DEA would occasionally raid a grower or dispensary, and indict the owners to make examples of them, but they were never serious about completely shutting down the business, so the overall risk that the medical marijuana industry entailed was fairly low.

The fact is, the federal government simply doesn’t have the resources to fill the enforcement void that Prop 19 would create without diverting significant resources from other areas.

2) Try to get Prop 19 overturned in court

In theory, the federal government could sue California in federal court, arguing that Prop. 19 is unconstitutional. The problem is that they wouldn’t have a very good argument. Nowhere is it written that California, or any other state, has to criminalize marijuana. Proposition 19, at its core, simply removes a California law. It would be one thing if California passed a law and the federal government wanted to stop its enforcement (perhaps on the grounds that it encroaches into territory that the constitution specifically reserves for the federal government, such as the Arizona immigration law). It’s quite another thing to have the courts force a state to ban a drug.

It seems very unlikely that the federal government could force California to criminalize marijuana, if the voters of that state decided to legalize it.

3) Make federal funding to states conditional on criminalizing marijuana

Ever wonder why every single state has made 21 its legal drinking age? Not that long ago, the legal drinking age in most states was 18. What changed? In an effort to reduce drunk driving, Congress, rather than simply passing a law raising the drinking age nationwide (it was highly debatable, at the time, whether or not they’d have the constitutional authority to do so), passed a law in 1984 that withheld federal highway funds from states that did not raise the drinking age to 21. Some states held out for a few years, but ended up caving when they realized that they simply couldn’t do without the money.

If the federal government is serious about keeping marijuana illegal, and other states begin flirting with the idea of following in California’s footsteps, this is probably their best option. However, it’s at least theoretically possible that states would be able to offset the loss of some federal funds through tax revenue generated by legal marijuana sales, and a reduction in expenditures on law enforcement and prisons, so the federal government might find this ineffective, but that would require the most optimistic predictions regarding tax revenues and savings stemming from legalization to be true.

4) Do nothing

Finally, the federal government could simply make no changes to its drug-enforcement activities in California. This is pretty unlikely, since small-time growers and users of marijuana would basically have nothing to fear, since they are almost never targeted by federal authorities.

This would essentially give other states the go-ahead to legalize marijuana, if they decide it’s a policy they want to pursue. If enough states legalize marijuana, and the federal government attempts to fill every void that this creates, the federal government would probably, for the first time in decades, have to seriously reconsider its own marijuana policy.

If Prop 19 passes, it will most likely be a watershed moment in our country’s legal history, and put our country’s drug policy at a crossroads. And even if it doesn’t pass, polls indicate that, if it is defeated, it will be by a very narrow margin. If this is the case, it would show other states that passage of similar initiatives may well be within reach, emboldening supporters to try and pass similar laws. So, whatever happens in November, it’s likely that marijuana policy in the U.S. is going to be seriously tested.