Whatcha Gonna Do?

Whatcha Gonna Do?

The marijuana legalization votes in Colorado and Washington have tongues wagging across the country.  And much of that tongue-wagging centers on one question: “Hey, Feds, whatcha gonna do now?  State legalization puts strong pressure on federal attempts to maintain the War on Drugs, and none of their possible responses would be effective.

The government’s choices narrow down to about six, although these can be combined or varied: 1) keep doing business as usual, 2) step in and try to enforce the federal marijuana laws vigorously, 3) bow out and ignore marijuana activity in these states, 4) treat the legalizing states like foreign drug producers and seal their borders with other states, 5) apply indirect pressures on bankers and landlords and stop federal funds to these states, or 6) ask congress to amend the federal laws.  None of these options provide the feds with a rosy outlook.

Business as usual looks like the best bet for the federal government.  Except for concerns with cross-border smuggling from Mexico (and to a lesser extent from Canada), marijuana is not on the federal radar anyway.  The dividing line for federal actions against marijuana is normally ninety-nine plants, that being the statutory threshold for applying the most severe sanctions.  States have been expected to pursue any cases involving smaller amounts.  This strategy has two major flaws.  First, a large and thriving commerce can develop operating under a hundred plant cap.  Second, it would create an impression either that the federal government is powerless to prevent marijuana commerce or that it condones that trade.

The feds can’t simply step in and close the gap by directly enforcing the federal marijuana laws.  They don’t have the resources.  The dirty little secret of the Drug War is that the federal government has always relied on the states to provide the manpower and resources to enforce the drug laws.  The numbers tell the story.  Each year about 1.5 million are arrested for drug offenses, over half of them for marijuana crimes.  Simple marijuana possession accounts for around 800,000 of those.  The federal court system handles just over 14,000 criminal cases each year – and that includes terrorism, bank robbery, kidnapping, and white collar crimes.  Even a relatively low-population state like Colorado will generate twice that number of cases each year.  Only 480 federal trial judges are available to handle these cases; and they have large civil dockets as well.  DEA agents will not lurk on street corners arresting teen agers holding a single joint.  The DEA has a total of around 5500 agents (including those stationed abroad and those acting bureaucratically in Washington).  This number is about the size of the Houston police force.  Teen-age stoners will become octogenarian couch potatoes before the DEA can get around to arresting them.

On the other hand, Colorado and Washington cannot just be ignored. Their experiments might be successful.  Rampant drug abuse and crime might not occur.  They might save large amounts and law enforcement and garner massive tax revenues.  And if that happens and the feds don’t slap them down, then the other forty-eight states will join the stampede (several bills have already been filed in state legislatures in less than a month.)

Surely the feds can force them to keep their weed at home and not let it leak out to the other states.  Can they be treated like drug-exporting countries like Colombia and Mexico?  Some states are already complaining about marijuana coming into their states from medical marijuana states like California, Oregon, Washington, and Colorado.  Legally grown marijuana from Colorado and Washington can severely undercut the price of Mexican imports and improve on the quality as well.  The 5500 DEA agents and 14,000 Border Patrol agents have been unable to even slow down the flow from Mexico, and they will have far fewer tools to prevent interstate traffic.  Washington’s two long borders with Oregon and Idaho and Colorado’s with Wyoming, Kansas, Nebraska, Oklahoma, New Mexico, and Utah are almost as long as the Mexican border.  The border patrol and ICE has no jurisdiction over interstate movement or commerce.  Interstate borders cannot be blocked with armored walls; and checkpoints and warrantless searches would be unconstitutional.  On the other hand, increased interstate commerce in legalized marijuana should greatly crimp the earnings and ability to do business of the Mexican cartels.

Indirect enforcement would also be ineffective.  In California, Colorado, and Montana the DEA has attempted to use the banking authorities to block marijuana businesses from using banks, tried oppressive income tax enforcement, and brought forfeitures against landlords.  But banking limitations are easily avoided and tax and forfeiture cases are so ponderous that, while they are destructive to a few individuals, they have little effect on the business overall and build public resentment.  While congress has pressured states into uniform drinking ages and speed limits by threatening to withhold highway funding, strong constitutional questions will arise if the feds try to withhold funds not related to the problem they are trying to regulate.

The feds could go to congress for help, but what could congress do?  The Controlled Substances Act already pushes the limits of congressional power under both the commerce and treaty clauses.  Under current circumstances congress is unlikely to increase spending on drug law enforcement to any great extent.  The courts have already been pushed to the limits on search and interrogation methods.  About the only doors open to congress at this point are those leading to a loosening of drug prohibition.

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Somewhere in Washington a conference room window glows in the midnight dark.  Fluorescent glare highlights a gleaming conference table littered with coffee cups, open law books, and laptops.   Tired men in wrinkled suits with tussled hair and ties askew talk quietly or stare blankly at the walls.  I wish I were there so I could ask: “Hey, Feds, whatcha gonna do now?”