Marijuana and Federalism

In The Los Angeles Times, Mark Kleiman reinforces a point that this blog made on an earlier post:

There's one problem with legalizing, taxing and regulating cannabis at the state level: It can't be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can't legalize a federal felony. Therefore, any grower or seller paying California taxes on marijuana sales or filing pot-related California regulatory paperwork would be confessing, in writing, to multiple federal crimes. And that won't happen.

True, Atty. Gen. Eric H. Holder Jr. has announced that the Justice Department will not prosecute people who are selling medical marijuana in compliance with California's law. But that's an entirely different matter. The attorney general could cite good legal and constitutional reasons for that policy, because the regulation of medical practice is a state and not a federal responsibility. And if the medical justification for most of the pot sold through dispensaries is sketchy at best? Well, that too is a state problem. The international treaties that require their signatories, including the United States, to ban the production and sale of cannabis have an exception for medical use.

Most important, the feds can afford to take a laid-back attitude toward California's medical marijuana trade because it's unlikely to cause much of a trafficking problem in the rest of the country. Because dispensaries' prices are just as high as those for black-market marijuana, there's not much temptation to buy the "medical" sort in California and resell it out of state.

By contrast, the non-medical cannabis industry that would be allowed if Proposition 19 passed would quickly fuel a national illicit market. According to a study issued by the RAND Corp.'s Drug Policy Research Center this month, if the initiative passes, the pretax retail price of high-grade sinsemilla marijuana sold legally in California is likely to drop to under $40 per ounce, compared with current illicit-market (or dispensary) prices of $300 an ounce and more. Yes, the counties would have authority to tax the product, but even at a tax rate of $50 an ounce — more than 100% of the pretax price — the legal California product would still be a screaming bargain by national standards, at less than one-third of current black-market prices.