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If Sen. Schumer Is Serious About Letting State Marijuana Experiments Work, Here’s What He Should Do

By Ian Millhiser

"If Sen. Schumer Is Serious About Letting State Marijuana Experiments Work, Here’s What He Should Do"

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CREDIT: AP Photo/Brennan Linsley

Appearing on MSNBC Monday morning, Sen. Chuck Schumer (D-NY) offered some ambivalent support — but support nonetheless — for allowing states to experiment with less restrictive marijuana laws. “I’m a little cautious on this,” he told interviewer Chuck Todd, but Schumer would also like to “see how the state experiments work” in places like Colorado and Washington that have outright legalized marijuana under state law.

Based on his comments to Todd, no one should expect Schumer to be the keynote speaker at a legalization event any time soon. While Schumer rejected the suggestion that the federal government should “crack down” on marijuana in states where it is legal, he seemed to view his preferred outcome — waiting to see how state experiments play out — as in tension with immediate liberalization of marijuana laws at the federal level. “I’d be a little cautious here at the federal level,” Schumer noted, adding that he would like to “see the laboratories of the states, see their outcomes before we make a decision.”

The problem with this wait-and-see approach, however, is that the states’ ability to experiment is currently hindered by federal enforcement of nationwide marijuana laws. Currently, marijuana dispensaries are operating almost entirely on a cash basis because federal money laundering law prevents them from depositing their money in banks — although Attorney General Eric Holder recently announced that changes may be coming soon to these regulations. The IRS will not permit marijuana businesses to deduct any of their business-related expenses, driving up the cost of operating such a business.

And, of course, there’s the looming threat of a federal prosecution. Although the Justice Department announced last August that federal prosecutors should scale back prosecutions of marijuana dispensaries that are “demonstrably in compliance with a strong and effective [state] regulatory system,” at least one U.S. Attorney suggested that she will continue to pursue dispensaries. And even if marijuana prosecutions halt entirely under the Justice Department’s current policy, there’s no guarantee that this policy will remain in effect during the next administration — or even that it will remain in effect during this administration. The Justice Department announced three major changes to its marijuana policy since President Obama took office, first loosening restrictions on marijuana in states where it is legal, then tightening those restrictions, then loosening them once again.

So it’s awful difficult for someone who wants to “experiment” with opening a new marijuana dispensary to take advantage of the “laboratories of the states” when this degree of uncertainty hangs over their operation. The Justice Department could announce tomorrow, or on the first day of the next administration, that they intend to prosecute anyone who runs a dispensary that is legal under state law.

The solution to this problem, if Schumer is serious about letting states experiment with more permissive marijuana laws, is to allow states to conduct this experiment without the looming threat of federal enforcement actions. In 2012, for example, Rep. Diana DeGette (D-CO) introduced bipartisan legislation that exempts states where voters have legalized marijuana from the provision of the Controlled Substances Act dealing with that drug. The best way for Schumer to allow state experimentation to take place would be to back similar legislation in the Senate.

Schumer probably would not be alone if he backed such a bill. Senate Judiciary Chair Patrick Leahy (D-VT), for example, wrote a letter to the director of the Office of National Drug Control Policy hinting that he would support “amend[ing] the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law.” Sen. Rand Paul (R-KY) also called for allowing states to decide more questions of marijuana policy. And Sen. Cory Booker (D-NJ) denounced the “so-called War on Drugs” altogether — “we are pouring huge amounts of our public resources into this current effort that are bleeding our public treasury and unnecessarily undermining human potential.”

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