Tuesday, September 16, 2014

XXIst Amendment: Model for Reform?

XXIst Amendment: Model for Reform?

Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress

Passed by Congress February 20, 1933. Ratified December 5, 1933.

In 1933 the American people removed the Prohibition of alcohol that they had imposed by the XVIIIth Amendment to the Constitution only fourteen years earlier in 1919.  They did so by ratifying the XXIst Amendment.  Today as the nation struggles to get out from under the burden of drug Prohibition (especially that of marijuana) can that amendment provide a model for accomplishing this?

First, the good news.  Alcohol Prohibition was created by a constitutional amendment, requiring another amendment to undo it.  Other the other hand, drug Prohibition is only statutory and can be removed by the simple legislative process.

 Second, the model uses broad policy strokes, avoiding contentious legislative fights over the details and fine print of reform.  It avoids locking into place regulations that are either destructively rigorous or so loose as to invite pandemonium.  Its focus on federalism and local choices allows for experimentation to allow the evolution of the most appropriate controls.

The Amendment has only two operative sentences.  The first simply repeals the Prohibition Amendment.  The second, drawing on the Commerce Clause of the Constitution, makes transportation of alcohol across a state border in violation of that state’s laws a federal crime.  (This interstate transport provision is similar to the old Mann Act, making the interstate transport of a woman across a state line for “immoral purposes” a federal crime, or the presumption of interstate movement to enable FBI jurisdiction in kidnapping cases.)  These two simple provisions, together with an excise tax on alcohol have provided sufficient regulation of alcohol for over eighty years.

Would the same two-step process -- first, remove direct federal control, but provide federal assistance to states whose laws differ from their neighbors -- be enough to end marijuana[1] Prohibition as well?   Although the general plan would be effective, the broad scope of the federal anti-drug laws add some complexities.

The second part would be easy enough.  A simple statute would make a federal crime of transporting drugs into or through the territory of a state if possession, transportation, distribution of that drug is a violation of that state’s law.  An exemption should probably be created to allow travelers with medical marijuana permissions under home state laws immunity for carrying small amounts for personal use.  The only problem would be to determine the penalty level.  The greatly reduced level of enforcement would justify closing down the policing part of the DEA and assigning the remainder to ATFE, which has over eighty years of enforcing similar alcohol provisions.

The first part – repealing the current federal anti-marijuana laws -- is more problematic for two reasons. First, marijuana Prohibition has metastasized throughout the federal code.  Marijuana possession or sale is penalized, even if not directly criminalized, in laws affecting eligibility for public housing, both student aid and aids and grants to educational institutions, banking regulations, the tax code, employment drug testing, and many others.  Close research of the federal code will be necessary to insure that the repeal language is broad enough to include all of these civil, indirect, or implicit restrictions.  Broad legislative factual determinations and statements of legislative intent to remove all penalties should probably be included for regulatory and judicial guidance in applying the repeal law.

The other side of the coin is that some federal regulation will need to be preserved, and possibly even strengthened.  Marijuana is, at base, an agricultural commodity.  USDA and EPA regulation of water use, fertilizer and pesticide use and run-off control, erosion control of croplands, and USDA inspection of crops to be consumed are essential. Since so many current marijuana farmers have been operating outside the law, heightened efforts may be necessary to bring them into compliance.

Since almost all marijuana is ingested, by smoking, eating, drinking, transdermally, or anally, it should be subject to existing regulations for food products under the FDA, FTC, and USDA.  If the amount of insect parts or rat feces in grain products are limited, so should those in marijuana be.  Marijuana edibles should be subject to the same purity, processing, packaging, and labelling standards as other edible products are.

A primary use for marijuana today, and one of the strongest drivers for law reform, is medical use; but medical use is also the area in which the need for continued federal regulation is strongest.  While the goal may be for the DEA and NIDA to fade away and ultimately go extinct, FDA regulation of medical uses of marijuana will remain strong.  However, this regulation should recognize a distinction between use of the unaltered plant and the use of extracts, derivatives, and synthetics.  The use of unaltered plants could be simply and adequately managed if Congress moved those uses from the Controlled Substances Act to the Dietary Supplements Act[2].  Recognized strains with stable genetics should be given protection under either trade name recognition or plant patent protection.  Derivatives and extracts should remain under the full scope of the Food, Drugs, and Cosmetics Act.  Some extract processing incorporating the use of flammable or explosive arguments require the imposition of the FDA’s best manufacturing standards.

These should all be required to complete the New Drug process, but that process presents a severe problem.  The chemistry of marijuana is well known, and many of the therapeutic uses have histories now decades long; and this history prevents patenting of molecules or procedures.  Without patent protection, no private party will invest the millions (often several hundred millions) to pursue a New Drug Application.  Some kind of fast-track process will be necessary.  Either Congress must provide it or the FDA can act administratively as they have done in the past.  When the governing law was changed to require prescriptions for many drugs and again when it was changed to require proof of efficacy, the FDA used administrative panels to authorize the use of drugs (the GRAS and GRASE lists) based on the history of their use.  The same could be done for many, but not all, uses of marijuana and extracts.

The XXIst Amendment provides a model for reforming federal marijuana law, but only a model.  The current law is much more complex than that of 1933, and a more sophisticated approach is necessary.  However, the basic federalism approach of delegating regulation to the states, which can once more be the laboratories of democracy, provides an approach that is both effective and cautious.  The approach is relatively quick and nopn-disruptive.  We should start applying it now.


[1] While marijuana is the logical first step, and may be an essential one, the same approach should work for other drugs as well.
[2] See my earlier post “Marijuana: Drug or Herb? “

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