Boldest Marijuana Legalization Proposal Yet

News today from Washington State has a former US Attorney voicing support for a plan to have Washington State sell marijuana to adults over 21 years of age via the state liquor board. The state liquor board already controls all non-beer and wine sales in the state, excepting of course sales that occur on tribal lands.

The attempt to have state officials distribute marijuana to Washington residents is in direct conflict with the Controlled Substances Act, which prohibits any sale, manufacture, or possession of Schedule 1 substances. Schedule 1 substances are classified as having a high addiction potential and no medical value. Marijuana was made a Schedule 1 substance when the CSA was signed into law despite a long history of being used in health tinctures in the 19th and 20th centuries, and the infamous program in which the federal government provided marijuana cigarettes to a limited number of patients who benefited from the drug. State officials are sworn to uphold the laws of the United States if they are in conflict with state laws.

There is little reason to believe that Washington state would prevail over the federal government if they chose to resist federal law in this instance. The federal government has vast resources devoted primarily to enforcing the controlled substances act, with plenty of backup possible from the Department of Alcohol Tobacco and Firearms, a department that already has plenty of interaction with the Washington State Liquor Board. US Attorneys would likely not choose seek a federal judge's injunction on such a program when the executive branch already possesses precisely the authority to disrupt distribution networks. This bill is a rare honest attempt at imagining a post-prohibition marijuana regulation regime, and it deserves to be debated in that hypothetical realm. Dismissing the plan on the basis of incompatibility with federal law would do a disservice to the citizens of Washington.

Federal laws will necessarily occupy much of the field in the quality standards, packaging, and basic legality of marijuana. Federal power to regulate marijuana is well established. Gonzales v. Raich affirmed that the commerce clause power to regulate extends to illicit markets, a practical oxymoron, extending the principle of Wickard v. Filburn, in which the Supreme Court declared that the federal government may regulate any activity that has a substantial effect on interstate commerce if taken in the aggregate. The proposal should be considered in the light that they will only take effect if the federal government steps back from its policy of total prohibition.

States still have a large amount of control over liquor, a substance that too is subject to myriad federal regulations. The model of complete state control of liquor distribution is certainly reproducible for marijuana distribution. It is a highly restrictive liquor control regime (Washington State also places a 30% excise tax on liquor), prohibiting all private sales. While the state monopoly of marijuana proposal seems liberal on its surface, that is purely because it takes on the weirdly taboo subject of drug policy. It is in its substance, in the world that it is working towards, a highly conservative proposal. Some important questions remain, and proponents of sensible drug policy should look first to the personal liberty question: would a private citizen be authorized to grow marijuana for herself, family, or friends? The alternative is corporate sourcing for 100% of the market, a possibility more akin to cigarette production than public health workers or marijuana smokers concerned about their lungs should accept.

I call this the boldest marijuana legalization proposal yet because it is a serious attempt at imagining a state-level control regime for marijuana, assuming that Congress changes the CSA or the FDA reschedules marijuana out of the prescription drug zone. Neither of these is likely in the next year, but the new coalition of vocally libertarian politicians in Congress could join with colleagues interested in the injustice of the current enforcement system.