Writing Assignment #1(Federalism) Please read the article U.S. should honor states’ new pot laws from cnn.com and watch the video clip Future of pot in Colorado hazy. http://www.cnn.com/2012/11/13/opinion/osler-marijuana-federal-law/   Write a 250-500 word summary that recaps the conflict between national and state law surrounding legalization of marijuana. The summary should be descriptive enough to inform someone who has little knowledge of the debate, but brief enough that it is not a reiteration of the entire article. Your summary should be written from an objective point of view and not take a side in the debate. When you are through, please submit your essay to the Turnitin link provided. No hard copies or essays submitted by email will be accepted. Use these guided questions to help you write your essay. * How did laws legalizing marijuana come to pass? Were they passed through legislative action, court order, or some other method? * What is the specific federal conflict related to legalization of marijuana? Why have federal and state laws controlling narcotics clashed in the past? * How has the national government responded to measures that have legalized marijuana in states? What could they do instead? * What is the likely outcome in this debate?    

Expert Answers

An illustration of the letter 'A' in a speech bubbles

The opinion piece by Mark Osler (“U.S. Should Honor New State Pot Laws”) is partially correct, and partially misleading with respect to the realities of regular marijuana use.  Federal drug laws do need to be reexamined, and the role of the U.S. Drug Enforcement Administration better defined in conformance with changing social mores and scientific evidence regarding the health effects of prolonged use of certain currently proscribed drugs and narcotics.  Furthermore, the DEA’s role in restricting public access to previously easily-attained “over-the-counter” medications like nasal decongestants, which contain chemicals like pseudoephedrine that are abused for illicit purposes, has complicated the ability of innocent consumers to acquire medications that they need for legitimate reasons and that should not ideally require a prescription.  The case with marijuana, however, has proven more politically contentious because of the belief among many that its use is no worse than alcohol consumption and is certainly less potentially harmful than cigarettes, which have been repeatedly documented to cause serious, life-threatening illnesses like emphysema and lung cancer. 

Marijuana is addictive, but so are many other legitimate medications, as well as alcohol.  One physician and medical researcher put it this way:

“Even though the physiological effects of cannabis withdrawal are generally mild, it is not correct to conclude that marijuana is not addictive, because being addicted to something is more than simply being physically dependent on a drug and experiencing physiological effects if the drug is stopped suddenly.  “Addiction” refers to behaviors that are compulsive, partially out of control or worse, and often escalating in severity and intensity.” [J. Wesley Boyd, M.D., Ph.D., “Almost Addicted: The Slippery Slope of Recreational Drug Use,” Psychology Today, November 3, 2013]

While regulation of marijuana was often intertwined with that for hemp, which was required by the English Crown to be grown by farmers as a source of revenue, efforts to ban or criminalize use of marijuana are largely a product of the 1930s efforts at curbing drug abuse in general, with primitive views of racial inequality playing a role in how marijuana in particular was viewed by “mainstream” society.  Marijuana was associated with low-income Mexican immigrants and its potential for abuse was greatly exaggerated by those advocating morality-based approaches to drugs and narcotics.  From the beginning, though, the issue of marijuana criminalization was a political “football” punted back and forth between the federal and state governments.  The Harrison Narcotics Tax Act of 1914 was an early attempt at regulating drugs through taxation of those who “produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes.”  The fact that the Harrison Act merely sought to tax drugs and not prohibit them left a huge vacuum with respect to the regulation of drug use and for the importation and manufacture of drugs.  For this reason, the Harrison Act was followed in 1934 by passage of the Uniform State Narcotic Drug Act, federal legislation that sought to coordinate state laws and regulations pertaining to drugs, including marijuana.  While earlier government attempts at dealing with the issue of drugs focused overwhelmingly on opiates, marijuana usage, as noted, became more politically sensitive with the increase in immigration from the south, and the Uniform State Narcotic Drug Act specifically dealt with marijuana.  Appendix I of this act defined substances to be covered by this new law as follows:

 "Narcotic drugs" means coca leaves, opium, cannabis, and every other substance neither chemically nor physically distinguishable from them; any other drugs to which the Federal laws relating to narcotic drugs may now apply; and any drug found by the (State Commissioner of Health or other competent state officer) after reasonable notice and opportunity for hearing, to have an addiction-forming or addiction-sustaining liability similar to morphine or cocaine, from the date of publication of such finding by said (State Commissioner of Health or other competent state officer).” [http://www.druglibrary.net/schaffer/people/anslinger/traffic/appendix1.htm]

As noted, the intention of the Uniform State Narcotic Drug Act, as its name implies, was to establish a degree of standardization among disparate states with respect to regulation of marijuana and other drugs.  As the aforementioned appendix noted in its preface, the intent was to:

“2. Arrest the growth and spread of the traffic in illicit narcotics by replacing the present inadequate and conflicting state laws.

3. Utilize and call in to full exercise the powers that reside in the states alone, permitting prosecution in such cases as illegal possession, over which the Federal courts have no jurisdiction.”

The 10th Amendment to the U.S. Constitution states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  The Constitution, of course, did not directly address the issue of narcotics, which meant that the states were free to regulate them as they saw fit.  The Comprehensive Drug Abuse Prevention and Control Act of 1970 was Congress’s response to the increase in America in use and abuse of drugs, including heroin, LSD, marijuana, and others.   Title II of that Act is the “Controlled Substances Act,” which authorizes the Executive Branch of the government,, specifically, the Attorney General of the United States, to maintain a list of drugs in a series of sections or “schedules” reflecting each drug’s level of addictiveness and to:

“(1) add to such a schedule or transfer between such schedules any drug or other substance if he—

(A) finds that such drug or other substance has a potential for abuse, and

(B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed; or

(2) remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.” [http://www.deadiversion.usdoj.gov/21cfr/21usc/811.htm]

The 1970s, then, were the years in which the issue of federalization of drug laws was completed, and the Controlled Substances Act remains in force today, with the U.S. Drug Enforcement Administration, which had been established by Executive Order by President Richard Nixon in 1973, as the principal executor of the authorities provided in the Act.

While Congress and the presidents have successfully “federalized” the nation’s drug control laws, the underlying supreme law of the land remains the Constitution, which, as noted, was silent on this issue.  Individual states, therefore, have taken it upon themselves to regulate marijuana, with Washington and Colorado taking the lead in legalizing marijuana for recreational purposes.  How the federal government will respond is an open question, as changes in presidencies and in which political party controls the chambers of Congress subject to change on a regular basis.  The federal government’s main leverage in matters such as this involves its budgetary powers.  All states are dependent to greater or lesser degrees on federal assistance to fund major activities.  Laws passed by Congress linking state drug laws to federal programs can be a powerful motivator in influencing individual states.  Whether this comes to pass with respect to marijuana laws, however, is unlikely given the trends among states to liberalize drug laws.  Osler’s comments regarding the conflict between morality and objective approaches to public policy are valid, but he can be accused of minimalizing the long-term ramifications of drug liberalization.  There are legitimate medical and social concerns emanating from legalization of marijuana that he simply chose to ignore.

Approved by eNotes Editorial Team