Marijuana Policy Problems

 Zusha Elinson  and Jimmy Vielkind at WSJ:

The illegal marijuana trade is booming in California, seven years after the state legalized its possession, cultivation and distribution. Unlicensed sales totaled $8.1 billion last year, dwarfing legal sales of $5.4 billion, according to estimates by New Frontier Data, a cannabis analytics firm.

Lawmakers in New York are concerned their state is headed in a similar direction. New York legalized cannabis possession in small amounts in 2021. Two years later, just five shops sell marijuana legally in New York City, while 1,400 bodegas, smoke shops and other outlets without licenses do, according to an estimate by the city sheriff.

The persistence of the illegal pot business in the face of state legalization reflects a variety of forces. Slow rollouts of dispensary licenses leave unmet demand that unlicensed outlets are happy to serve. Police and prosecutors, facing pressing problems such as violent crime, give little priority to stopping illegal pot. And high taxes on legal sales fan the embers of illicit ones.

“When you start seeing tax rates that are approaching 30 to 40 percent on products, it’s really going to be difficult to compete against the remnants of an illegal market,” said Mason Tvert, a consultant who played a role in several state campaigns to legalize cannabis.

Some of the 22 states that have legalized marijuana possession have had better luck extinguishing the black market, said industry observers, because they have permitted more legal retail shops, streamlined the process of going legal or didn’t have such entrenched networks of dealers or growers at the outset. At the federal level, marijuana remains illegal.

Interest Group Money and Cannibis Research

Adam Elmahrek at LAT:

When UCLA started its cannabis research initiative five years ago, the university hailed the undertaking as one of the first academic programs in the world dedicated to studying the health effects of pot.

Legalization was quickly taking hold around the country, and the cannabis industry was attempting to transform the plant’s image from an illicit substance that gets you high to a health and wellness product.

The Times asked UCLA officials whether the university accepted donations from the industry to support the program. They said no.

However, documents obtained by the newspaper, eventually released by UCLA under the California Public Records Act, show that cannabis companies and investors provided at least some of the early financial support, writing checks for tens of thousands of dollars in donations and assisting with fundraising events.

The industry support underscores potential conflicts of interest as pot goes mainstream and researchers try to assess the health and other effects of cannabis. A marijuana investor and foundations with ties to the newly legal cannabis industry have donated millions of dollars to university research programs studying claims of the plant’s medical virtues, raising questions about how independent the scientific research can be.

Harvard, the Massachusetts Institute of Technology and UC San Diego are among the schools that have accepted multimillion-dollar gifts in recent years....

Private industry funding of biomedical research has become increasingly common over the decades, to the point where it is now the largest source of funding for research. Past studies have shown industry-funded research has a greater tendency to produce results favorable to the industry, according to Joanna Cohen, professor of disease prevention at Johns Hopkins Bloomberg School of Public Health.

“The research is strong enough that we know the source of the funds is problematic,” Cohen said. “There’s no reason to think cannabis will be any different.”

In 2003, a study conducted at the Yale School of Medicine found that industry-funded studies were 3.6 times more likely to produce outcomes favorable to their sponsors.

POTUS and Marijuana

From President Biden:

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana. Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities. And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.

Today, I am announcing three steps that I am taking to end this failed approach.

First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana. I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals. There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result. My action will help relieve the collateral consequences arising from these convictions.

Second, I am urging all Governors to do the same with regard to state offenses. Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.

Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.

Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.

Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs. 

The Congressional Research Service finds that a president cannot directly decriminalize marijuana, but there is more to the story -- hence step three of the Biden announcement.

Either Congress or the executive branch has the authority to change the status of marijuana under the CSA [Controlled Substances Act]. Congress can change the status of a controlled substance through legislation: Congress included  marijuana in Schedule I by legislation when it enacted the CSA, and has more recently passed legislation to impose controls on other substances, including synthetic cannabinoids and fentanyl analogues. In the alternative, the CSA empowers DEA to make scheduling decisions through the notice-and-commentrulemaking process, in consultation with the Department of Health and Human Services (HHS) (HHS has delegated its factfinding role in this process to the Food and Drug Administration (FDA)). The CSA provision directing DEA to schedule controlled substances as “required by United States obligations under international treaties” may limit the agency’s authority to relax controls of marijuana; another CRS report discusses considerations for Congress related to marijuana’s status under international drug control treaties.

If the President sought to act in the area of controlled substances regulation, he would likely do so by executive order. However, the Supreme Court has held that the President has the power to issue an executive order only if authorized by “an act of Congress or . . . the Constitution itself.” The CSA does not provide a direct role for the President in the classification of controlled substances, nor does Article II of the Constitution grant the President power in this area (federal controlled substances law is an exercise of Congress’s power to regulate interstate commerce). Thus, it does not appear that the President could directly deschedule or reschedule marijuana by executive order.

Although the President may not unilaterally deschedule or reschedule a controlled substance, he does possess a large degree of indirect influence over scheduling decisions. The President could pursue the appointment of agency officials who favor descheduling, or use executive orders to direct DEA, HHS, and FDA to consider administrative descheduling of marijuana. The notice-and-comment rulemaking process would take time, and would be subject to judicial review if challenged, but could be done consistently with the CSA’s procedural requirements. In the alternative, the President could work with Congress to pursue descheduling through an amendment to the CSA.

Weed the people: These are the states where marijuana is legal.

This map reveals that public opinion, red and blue states, and voters across the political spectrum have all come around to the idea of legal weed. pic.twitter.com/4MegZIgnv6

— Vox (@voxdotcom) April 20, 2022

Cannibis Industry

Matt Guilhem at KCRW-FM:

Cannabis is America’s fastest-growing industry, but how much cash does all the cush translate to?

Leafly Senior Editor David Downs tells KCRW the “green rush” is taking over the nation.

KCRW: Where does cannabis stand among other harvests nationally?

When we look at these adult-use states, we often see cannabis being the number one cash crop in that state. In Oregon and Colorado as well as Massachusetts and Nevada and Alaska, cannabis is the number one cash crop.

What's telling is that in a lot of these states, they haven't had legalization for very long. Illinois cannabis is the number three cash crop, and people have been able to shop in stores for just over a year.

How about California?

We think California cannabis farmers on the legal side are producing about 514 metric tons of the crop each year, and the value of that cannabis production in dollars is $1.66 billion.

That ranks cannabis as number five among state crops. Number four is strawberries at $2 billion, and number six is tomatoes at $1.19 billion.

That's a massive market, and the crazy thing is four out of five pounds grown in the state are still growing in the illicit market.

The 514 metric tons amount for the adult-use market is likely just a fraction of the actual amount California is growing. California remains the number one domestic producer of cannabis since the 80s.

Justice Thomas on Federalism and the Inconsistencies of Marijuana Law

 Cite as: 594 U. S. ____ (2021) 1 Statement of THOMAS, J. SUPREME COURT OF THE UNITED STATES STANDING AKIMBO, LLC, ET AL., v. UNITED STATES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 20–645. Decided June 28, 2021

Sixteen years ago, this Court held that Congress’ power to regulate interstate commerce authorized it “to prohibit the local cultivation and use of marijuana.” Gonzales v. Raich, 545 U. S. 1, 5 (2005). The reason, the Court explained, was that Congress had “enacted comprehensive legislation to regulate the interstate market in a fungible commodity” and that “exemption[s]” for local use could undermine this “comprehensive” regime. Id., at 22–29. The Court stressed that Congress had decided “to prohibit entirely the possession or use of [marijuana]” and had “designate[d] marijuana as contraband for any purpose.” Id., at 24–27 (first emphasis added). Prohibiting any intrastate use was thus, according to the Court, “‘necessary and proper’” to avoid a “gaping hole” in Congress’ “closed regulatory system.” Id., at 13, 22 (citing U. S. Const., Art. I, §8).

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary

Thomas notes that the federal government outlaws marijuana even though 36 states have legalized it for medical use and 18 allow recreational use.

Yet, as petitioners recently discovered, legality understate law and the absence of federal criminal enforcement do not ensure equal treatment. At issue here is a provision of the Tax Code that allows most businesses to calculate their taxable income by subtracting from their gross revenue the cost of goods sold and other ordinary and necessary business expenses, such as rent and employee salaries. See 26 U. S. C. §162(a); 26 CFR. 1.61–3(a) (2020). But because of a public-policy provision in the Tax Code, companies that deal in controlled substances prohibited by federal law may subtract only the cost of goods sold, not the other ordinary and necessary business expenses. See 26 U. S. C. §280E. Under this rule, a business that is still in the red after it pays its workers and keeps the lights on might nonetheless owe substantial federal income tax. 

...

This disjuncture between the Government’s recent laissez-faire policies on marijuana and the actual operation of specific laws is not limited to the tax context. Many marijuana-related businesses operate entirely in cash because federal law prohibits certain financial institutions from knowingly accepting deposits from or providing other bank services to businesses that violate federal law. Black & Galeazzi, Cannabis Banking: Proceed With Caution, American Bar Assn., Feb. 6, 2020. Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protection, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a “drug trafficking crime.” 18 U. S. C. §924(c)(1)(A). A marijuana user similarly can find himself a federal felon if he just possesses a firearm. §922(g)(3). Or petitioners and similar businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act. See, e.g., Safe Streets Alliance v. Hickenlooper, 859 F. 3d 865, 876– 877 (CA10 2017) (permitting such a suit to proceed).

 

Marijuana Use

From Gallup:

The July 2019 Gallup survey found that the likelihood to smoke marijuana varies significantly by gender, age, and political ideology.

• Men (15%) are more likely to smoke marijuana than women (9%).
• At 22%, 18- to 29-year-olds are the most likely age group to smoke marijuana -- about twice as likely as those between the ages of 30 and 64, and seven times as likely as adults older than 65.
• Liberals (24%) are six times more likely to smoke marijuana than conservatives (4%), and twice as likely as moderates (12%).

The Marijuana Opportunity Reinvestment and Expungement Act that would federally decriminalize marijuana passed the House Judiciary Committee in November 2019, but, with that bill yet to make it to the House floor and facing an uncertain future in the Senate, the use of marijuana remains illegal under federal law. Meanwhile, 33 states have legalized marijuana in some way for adults -- whether for medicinal or recreational use; however, only one of those states, Florida, is in the South, which is reflected in that region's lower rate of marijuana users.

Marijuana and Cigarettes

Lydia Saad at Gallup:

Americans' cigarette use continues to decline, hitting a new low in Gallup's 75-year trend. Currently, 15% of U.S. adults say they have smoked cigarettes in the past week, in marked contrast to the 45% who reported doing so in the 1950s. At the same time, 12% of Americans now say they smoke marijuana and 8% say they have vaped in the past week.
...
Cigarette smoking is strongly correlated with education and income, whereby the higher a person is on each scale, the less likely they are to smoke cigarettes. Also, adults younger than 30 are among the least likely age groups, along with seniors, to smoke cigarettes. They are also the only group more likely to smoke both marijuana and e-cigarettes than to smoke regular cigarettes.

Percent smoking cigarettes by education level:

• Postgraduate.................. 3 
• College graduate only ...9 
• Some college ...............18 
• No college ...................20

Marijuana use largely transcends socio-economic boundaries, except that far fewer postgraduates use it compared with all other education groups. It is more popular with the 20-something age category than all others. However, marijuana use drops off less sharply by age than does use of e-cigarettes. It remains above 10% among those aged 30 to 64, only falling to single digits among the 65-and-older set. 

Views of Moral Behavior

Megan Brenan at Gallup:

Using birth control, drinking alcohol and getting a divorce remain the most broadly accepted personal moral behaviors in the United States, out of a list of 21 measured in Gallup's annual Values and Beliefs poll. Conversely, extramarital affairs, cloning humans, suicide and polygamy are viewed most broadly by Americans as morally wrong behaviors.

All but five of these behaviors have been measured since the early 2000s, and Americans have increasingly taken a more liberal view on many of them since then. The latest reading, from a May 1-12 poll, shows that at least 60% of Americans find 10 of the behaviors to be morally acceptable. In addition to birth control (92%), alcohol use (79%), and divorce (77%), sex between unmarried men and women (71%), gambling (68%), smoking marijuana (65%), embryonic stem cell research (64%), having a baby outside of marriage (64%), gay or lesbian relations (63%) and the death penalty (60%) round out that list.

At the other end of the spectrum, there are seven behaviors that fewer than four in 10 Americans deem morally acceptable, including teenage sex (38%), pornography (37%), cloning animals (31%), polygamy (18%), suicide (17%), cloning humans (12%) and extramarital affairs (9%).

The issues that divide Americans most closely are buying and wearing clothing made of animal fur, doctor-assisted suicide, medical testing on animals and abortion. On each, the gap between "morally acceptable" and "morally wrong" views is less than 10 percentage points.

Operation Intercept

Emily Tamkin at WP:

Launched in 1969 and lasting just 20 days, Operation Intercept was ostensibly meant to stem the flow of illegal drugs, including marijuana, into the United States. The idea was to add agents to the border to help better intercept the contraband. “In reality, however, it was designed not to interdict narcotics but to publicize the new administration’s war on crime and force Mexican compliance with Washington’s anti-drug campaign,” political science professor Richard B. Craig wrote in 1980.

At the time, newspapers deemed it the “largest peacetime search and seizure operation in history.” The operation was planned by G. Gordon Liddy, the former FBI agent who later helped orchestrate the Watergate break-in; the State Department was effectively shut out of the planning process for the operation.

Operation Intercept resulted in a “near shutdown of traffic” across the southern border. There were major backups at the border; instead of random searches, everyone was searched; legal laborers and commerce couldn’t cross; and Mexico, in response to this unilateral approach to a bilateral issue, began a boycott of U.S. goods. Also, almost no marijuana was actually seized; traffickers just found other, safer ways in.

About three weeks later, the United States abandoned the plan in favor of Operation Cooperation with Mexico. Some suggest that the plan worked — Mexico, the thinking goes, was more keen to cooperate with the United States after Operation Intercept. Others suggest that Operation Intercept had lasting international consequences and serves as a cautionary tale against unilateral action on multilateral issues.

Americans Want to Legalize Marijuana

Justin McCarthy at Gallup:

Sixty-six percent of Americans now support legalizing marijuana, another new high in Gallup's trend over nearly half a century. The latest figure marks the third consecutive year that support on the measure has increased and established a new record.

Fake News on Marijuana

The Advocate reports:

As a bill seeking to expand Louisiana's medical marijuana laws works its way through Louisiana's legislature, it's facing a bit of confusion.

As one lawmaker argued against HB579 in a House committee Thursday, she referenced a satirical news article from The Daily Currant claiming 37 people died on the first day recreational marijuana was legalized in Colorado in January 2014.

That story is fake. The information is untrue.

Rep. Dodie Horton (R-Haughton) cited the information from the satirical news outlet during a discussion before the committee voted on the bill. She later replied to a tweet from an Advocate reporter identifying her source as a satirical outlet, saying she received the story from "a so-called 'trusted' source," before blocking that reporter from her account. She acknowledged in the tweet she now realizes her source was not credible.

California and States' Rights

Liberals are embracing states' rights,  a term that -- until very recently -- they denounced as a racist dog whistle.

Tim Arango at NYT:

Just as Californians were enjoying their first days of legal pot smoking, the Trump administration moved to enforce federal laws against the drug. On the same day, the federal government said it would expand offshore oil drilling, which California’s Senate leader called an assault on “our pristine coastline.”

When President Trump signed a law that would raise the tax bills of many Californians by restricting deductions, lawmakers in this state proposed a creative end-around — essentially making state taxes charitable contributions, and fully deductible. And California’s refusal to help federal agents deport undocumented immigrants prompted one administration official to suggest that state politicians should be arrested.

The clash between California and Mr. Trump and his supporters — between one America and another — began the morning after he won the presidency, when Kevin de León, the State Senate leader, and his counterpart in the Assembly, Anthony Rendon, said they “woke up feeling like strangers in a foreign land.”

Since then the fight has metastasized into what could be the greatest contest over values between a White House and a state since the 1950s and 1960s, when the federal government moved to end segregation and expand civil rights.

Back then, of course, the ideologies and values at issue were reversed, as conservative Southerners, under the banner of states’ rights, fought violently to uphold white supremacy. In these times it is liberal California making the case for states’ rights, traditionally a Republican position.

Autism and Medical Marijuana in Minnesota

In The Politics of Autism, I discuss alternative treatments.

From the Minnesota Department of Public Health:

Minnesota Commissioner of Health Dr. Ed Ehlinger today announced the decision to add autism spectrum disorders and obstructive sleep apnea as new qualifying conditions for the state’s medical cannabis program.

“Any policy decisions about cannabis are difficult due to the relative lack of published scientific evidence,” said Commissioner Ehlinger. “However, there is increasing evidence for potential benefits of medical cannabis for those with severe autism and obstructive sleep apnea.”

This year, as in years past, the Minnesota Department of Health used a formal petitioning process to solicit public input on potential qualifying conditions. Throughout June and July, Minnesotans were invited to submit petitions to add qualifying conditions. The process included public comments, a citizens’ review panel and a set of research summaries for each condition prepared by Minnesota Department of Health staff.

Petitioners put forward a total of 10 conditions for consideration this year, including anxiety disorders, autism, cortico-basal degeneration, dementia, endogenous cannabinoid deficiency syndrome, liver disease, nausea, obstructive sleep apnea, Parkinson’s disease and peripheral neuropathy. There were also petitions to add cannabis delivery methods including infused edibles and vaporizing or smoking cannabis flowers. These requests were not approved.

Autism spectrum disorder is characterized by sustained social impairments in communication and interactions, and repetitive behaviors, interests or activities. Patients certified for the program because of autism must meet the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders – 5th edition) for autism. The health department’s autism research brief (PDF) found a growing body of research indicating that the human body’s endocannabinoid system may play a role in autism symptoms. In support of adding autism, the review panel report (PDF) noted the lack of effective drug treatments, the potentially severe side effects of current drug treatments and anecdotal evidence of Minnesota children with autism already receiving benefits from medical cannabis taken for other qualifying conditions.
...
Under current state rules, patients certified to have autism or obstructive sleep apnea will be newly eligible to enroll in the program on July 1, 2018 and receive medical cannabis from the state’s two medical cannabis manufacturers beginning Aug. 1, 2018. As with the program’s other qualifying conditions, patients will need advance certification from a Minnesota health care provider. More information on the program’s certification process is available from the Office of Medical Cannabis.

Problems with Legal Marijuana

George Skelton writes at The Los Angeles Times:

Californians seem hot to visit a legal pot shop and smoke a joint or munch a weeded brownie. But driving home could be risky.

No one — not even highway patrolmen — knows precisely how stoned a motorist can be before he’s dangerously under the influence of cannabis.

Unlike with liquor, there’s no 0.08% blood alcohol equivalent for marijuana. There’s not even a common Breathalyzer to measure drugged driving. And there’s nothing around the corner.

The Sacramento Bee editorializes:

Shaped by their lawyers and consultants, the complex 62-page initiative would help foster an industry that would retain lobbyists and lawyers who would mold regulations to their liking. Marijuana entrepreneurs would seek to expand their market, not limit weed’s use.

One million-dollar donor is Weedmaps, a startup whose former CEO, Justin Hartfield, told The Wall Street Journal that he envisioned becoming the Philip Morris of the marijuana business, a reference to the world’s largest cigarette maker. That ought to give any student of California politics pause, given the tobacco industry’s clout in the Capitol.

...
It poses serious issues around driving. We’re regularly cautioned against texting behind the wheel. Alcohol is the primary cause of more than 500 deaths on the roads each year in California. Stoned motorists pose a hazard, too. Proposition 64 would use revenue generated by new taxes to develop a standard for driving under the influence of cannabis. But a standard should be in place before the drug is fully legalized, in our view.

Anti-tobacco experts who have studied Proposition 64 also say it lacks provisions that would allow for the sorts of successful educational efforts developed by California public health authorities to dissuade people, particularly youths, from smoking tobacco.

Instead, the regulatory scheme envisioned by Proposition 64 is more akin to the liquor business, another formidable lobby force. While alcohol is regulated and not legally sold to minors, it’s also a heavily promoted, advertised and normalized product. The same would happen with legalized marijuana.

America Is Going to Pot

Reid Wilson reports at The Hill:

Voters in nine states will get to decide whether to liberalize laws involving marijuana this year in a rush of ballot measures that pro-pot activists see as a critical tipping point in the fight over legalization.

Five states — Arizona, California, Maine, Massachusetts and Nevada — will decide whether to legalize marijuana for recreational use. Four other states — Arkansas, Florida, Montana and Missouri — will decide whether to allow doctors to prescribe marijuana for medicinal use.

Collectively, the ballot measures mean more voters will be weighing in on marijuana issues than in any other year in American history. At the same time, the marijuana industry finds itself on something of a winning streak after voters in several states recently loosened restrictions on the drug.

In the last four years, four states — Washington, Colorado, Alaska and Oregon — and the District of Columbia have passed ballot measures legalizing marijuana for recreational use by adults over the age of 21. A similar measure has only failed once, in Ohio in 2015, though pro-pot activists are quick to distance themselves from a campaign they did not fully support.

Twenty-one other states allow marijuana for medicinal use. Twelve of those states have legalized medical marijuana since 2010.

Karlyn Bowman and Heather Sims write at AEI:

Over the past 50 years, support for the legalization of marijuana has been growing. In 1969, when the Gallup Organization first asked people if they thought marijuana should be made legal, 12 percent said it should and 84 percent should not. When Gallup last asked this question in 2015, 58 percent said it should be legal. Other more recent major national polls also show majority support for legalization.

In addition to identifying it as the most dangerous kind of drug, marijuana’s Schedule 1 classification holds that the drug has no currently accepted medical use. But the public thinks otherwise. In fact, the public is even more supportive of marijuana’s legalization for medicinal purposes than it is for legalization in general. In a recent Quinnipiac University survey, an overwhelming 89 percent of registered voters supported allowing adults to legally use marijuana for medical purposes if their doctor prescribes it. In a CBS News poll from April of this year, about the same number (87 percent) said doctors should be allowed to prescribe a small amount of marijuana for patients suffering from serious illnesses. In a Pew poll taken in 2015, those who thought marijuana should be legal cited its medicinal uses most often among the reasons for legalization.

Trying Marijuana

Gallup reports:

As Oregon becomes the fourth state to make recreational marijuana use legal, 44% of Americans say they have tried marijuana. This is the highest percentage Gallup has found since it began asking the question in 1969. Back then, a mere 4% admitted to having tried it.

New York Times Flip-Flops on States' Rights

On May 29, 2011, The New York Times denounced states' rights.

States’ rights has been a politically charged concept for even longer. It was a basis for secession and then for years of Southern defiance on segregation. Now it is used as an excuse for rejecting national immigration policy.

Today, it embraces the idea:

A decision about what kinds of substances to permit, and under what conditions, belongs in the purview of the states, as alcohol is handled.

As we have noted before, President Obama and other Democrats have explicitly embraced the language of states' rights.

Drugs, Federalism, and US Territory

A problem of federalism is that when one state's decision to allow an activity may undercut a neighboring state's efforts to prohibit it. The Los Angeles Times reports:

Law enforcement officers in the smaller, often isolated counties in states ringing Colorado say their departments shudder under the weight of Colorado pot flowing illegally across the border.

Drug arrests are rising, straining already strapped budgets in places where marijuana remains illegal.

"It has just devastated these smaller agencies," says Tom Gorman, director of the federally funded Rocky Mountain High Intensity Drug Trafficking Area program, a network of law enforcement organizations in four Western states. "The marijuana laws [in Colorado] were supposed to eliminate the black market. But in effect they have become the black market."

A study by his organization last year found that between 2005 and 2012, the amount of seized Colorado pot heading for other states increased 400%. Although it is legal for adults to possess small amounts of marijuana in Colorado, it remains against the law to take it out of the state.
But most agree it's fantasy to think that won't happen.

Puerto Rico's status as US territory is also problematic, as The New York Times reports:

Much of the cocaine being smuggled here now bypasses other surrounding islands and is taken directly from South America to Puerto Rico, a prized transshipment hub because it is on United States land. Once inside, packages that conceal drugs do not need to clear customs. The overwhelming majority of drugs that enter Puerto Rico end up in the United States mainland, passing through airports, seaports or mail parcels, said Vito S. Guarino, the United States Drug Enforcement Administration’s special agent in charge in San Juan and a veteran of the 1980 Caribbean-Miami drug wars.

Talking Back to Washington

At the Cato Institute, John Dinan discusses ways in which states can push back against federal power.  The excecutive summary:

Effective federalism requires that state officials be able to secure relief from national directives that impose undue burdens on state governments or improper constraints on state policy discretion. Many analysts focus on clearly legitimate and occasionally effective tactics such as lobbying or lawsuits. Some activists consider discredited tactics such as nullification that are a nonstarter in the 21st century. This policy analysis calls attention to various ways that states talk back to Washington using tactics that go beyond lobbying and litigation but fall short of nullification.

First, when state and federal governments both possess regulatory authority, states can enact measures decriminalizing certain practices, hoping federal executive officials will not enforce federal statutes in states with contrary policies. Second, states can decline to participate in federal programs and accept the designated penalties, hoping Congress will revise statutes or executive officials will issue rules or waivers that moderate the programs. Third, when federal judicial doctrine is uncertain or in flux, states can enact measures inconsistent with Supreme Court precedents, hoping the Court will reconsider and relax judicially imposed constraints on state policy discretion. Fourth, when federal judicial doctrine is uncertain or in flux, states can enact measures inconsistent with federal statutes, hoping the Supreme Court will invalidate or limit the reach of federal statutes. In recent years, state officials have relied on each of these tactics and with some success in responding to federal directives relating to marijuana, education, abortion, and health care, among other areas. State officials have resources to push back against national officials, thereby improving American federalism.

Nullification

Associated Press reports:

An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver's licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.

Some states, such as Montana and Arizona, have said "no" to the feds again and again - passing states' rights measures on all four subjects examined by the AP - despite questions about whether their "no" carries any legal significance.

"It seems that there has been an uptick in nullification efforts from both the left and the right," said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.

Yet "the law is clear - the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn't like those laws," Winkler added.

The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn't stopped some states from flouting those federal laws - sometimes successfully.

About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments - despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama's administration has made it known to federal prosecutors that it wasn't worth their time to target those people.

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama's 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.