In my last post I promised a case-specific exploration of the following question: “At what point should we expect honest preference to give over to polite, grudging tolerance?” In other words, suppose I prefer A to B. To what degree, and when, must I tolerate B? On one end of the spectrum lies the answer, “Not at all. Never. B is intolerable.” This is fascist territory. On the other there is, “Love your enemy. You’re just as much a sinner as any B supporter. Who are you to judge?” That way lies crucifixion.
And in the middle? Public policy.
In making policy, or even policy recommendations, we must make choices. There is little point in outlining concrete plans if those plans support no overarching goal. Indeed, (to get just a tad philosophical) autonomous, unmotivated action is mostly inconceivable. (Take that Camus!) In the increasingly-less-famous words of Canadian rock boffin Neil Peart, “If you choose not to decide, you still have made a choice.” So let’s all admit that we have preferences, and that these preferences guide our policies (both personal and public).
Sometimes it seems important to enforce our personal preferences on others (as in self-defense), and other times it seems better to let others continue in their folly (as in self-serve popcorn butter at the movies). Previously I stated that I see little good in attempting to establish general principles governing the question of when and how much we should tolerate what we consider to be wrong (or wrongheaded) actions. Instead, I claimed that such a question should be examined on a case-by-case basis.
Today, I bring the first case: the ongoing conflict between federal and state officials concerning the use, regulation, and sale of marijuana.
Just a few days ago the US Department of Justice (hereafter DOJ) published a memo to state attorneys general across the nation announcing its intention to focus its anti-marijuana prosecution and investigation efforts on the “most significant threats,” and implying an end to its persecution (and prosecution) of small-scale growers and users operating under state law but in violation of federal statutes. The structure of the memo is simple. It first lists the federal priorities (such as preventing drug-related gun violence, protecting minors from exposure to illegal drugs, and eliminating drug-trafficking as a source of income for large scale criminal networks). It then delegates the task of regulating marijuana use and distribution falling outside these priorities to the individual states. It calls upon states to provide adequate regulation and enforcement or else risk federal involvement. Finally, it states that the federal government reserves the right to investigate or prosecute in any case violating federal guidelines, regardless of state law.
That closing declaration of ultimate federal discretion more or less legally nullifies the entirety of the preceding memo, leaving residents of states that have legalized marijuana with little reassurance and zero legal recourse in the case of federal prosecution.
There are two ways of looking at this document. We could examine it cynically, and declare it typical administrative doublespeak, a token gesture of conciliation, a nod to the theoretical expediency of federalism, and a flat statement of authority more or less abrogating any rights to exclusive regulation or enforcement that states (under the umbrella of a federalist system) might hope to maintain. I must admit that this is the view I tend to take.
However, there is a more hopeful perspective that is worth considering. Perhaps the DOJ is simply attempting full disclosure of its own ambivalence. On the one hand, it is more or less obligated to prosecute violators of federal law. On the other, it cannot (to any great profit) operate entirely at odds with state law enforcement and state departments of justice. As I noted above, expediency suggests leaving the states to their own devices in all but the most flagrant violations of federal drug-enforcement priorities. The letter of the law, however, suggests that any state regulation of marijuana cultivation and distribution, even if largely supportive of federal priorities (as in one Mendocino county sheriff’s financing -- via local marijuana permits -- support for federal raids on large-scale marijuana farms hacked out of national forest land) is impermissible.
What then for the DOJ to do? It is understandably loath to officially relinquish federal purview; it is equally loath to enforce it in contravention of popular state legislation and to little long-term effect.
It may be, then, that the DOJ’s apparent doublespeak is less an artifact of autocratic dissembling and more a symptom of real uncertainty in the face of an admittedly perplexing dilemma.
This is where we (the policy analysts) step in. The DOJ is uncertain. What course of action might we recommend? We know the DOJ would prefer that states not operate in violation of federal law. Unfortunately, this cannot always be the case. So, to what degree should the DOJ tolerate state-level insubordination? To sharpen the issue, let us assume the DOJ officials not only support federal law as a matter of course, but as a matter of ideology. Let us suppose that, after decades of bitter fighting in the war on drugs, they have come to view any threat to their progress in that struggle, however slight, to be not merely illegal, but repugnant, morally degenerate, and ultimately in service of vicious, amoral international narcotics trafficking concerns. And let us assume that state officials are not simply bowing to the will of the electorate, but rather are decriminalizing marijuana use and possession because they feel that to prohibit it unnecessarily infringes on the liberty of the citizenry. Is this a case for zero tolerance?
I think we can argue quite convincingly that both sides are obliged to exercise a great deal of tolerance in this particular case.
First, the intrinsic danger of the drug in question is, while not zero, relatively low.
Second, the costs of state-federal infighting are not simply non-zero, but potentially very high, risking the integrity of entire state regulatory apparatuses and potentially occupying the time of a great deal of federal staff on matters that do not serve long-term federal goals.
Third, both states and the federal government agree (at least in theory) that the federal system requires states to act with a certain degree of autonomy, especially in local matters.
Fourth, both states and the federal government agree (again in theory) that the federal government is free to pursue its own policies both within and across state lines, although not necessarily with state support.
Fifth and finally, the relevant state regulations do not concern (once more, in theory) the mass production and distribution of illegal drugs the curbing of which the federal government has declared to be its priority.
In light of these factors, it seems safe to argue, even in the case of a sharp ideological divide, that tolerance is advisable in this case. Even if federal regulators see state legislation as small-time abetment of big-time crime; even if state legislatures see federal regulation as oppressive and anti-federalist; even in this case, there is more to be gained than lost from the states tolerating the occasional jurisdictional encroachment by federal officers, and the federal government leaving regulation of personal marijuana use in the hands of state law enforcement.
I am tempted to see exactly this sort of tolerance concealed in the equivocations of the latest DOJ drug-memo, but I suspect this is more my wishful thinking than anything else. Only time will tell if the DOJ has indeed adopted a policy of greater flexibility. I wish, however, that if it is their intention to pursue such a policy – indeed even if it is not -- they would make their position clear, rather than dealing in conflicting statements that assert federal priorities as final and unappealable while seeming to make concessions to state autonomy. It irks me to think that, having chosen not to decide, they would see fit to couch that indecision in ambiguity, rather than openly admit it.
Perhaps it is asking too much, but I am beginning to think a little Rush might not go amiss in Attorney General Eric Holder’s playlist.