Marijuana Use: Has California Outflanked the Feds?


Last November the nation watched as California voters decided whether to decriminalize marijuana entirely. The issue was significant because decriminalization would be a shot across the bow of federal authority.

A little history is important here.  When Congress created the Food and Drug Administration decades ago, the legislation empowered the agency to protect the nation from dangerous drugs. Marijuana was (and remains) among the drugs declared illegal by the FDA. Lest anyone wonder whether the FDA has exceeded its authority, the U.S. Supreme Court on several occasions has upheld the right of the FDA to carry out its mission. That's why the outcome of Proposition 19, the initiative that would decriminalize marijuana, seemed so important.

Seemed important!

Unbeknownst to most of us at the time, the state legislature passed and Gov. Arnold Schwarzenegger signed a new law that reduced the penalties for possession of an ounce or less of marijuana to an infraction and a fine of no more than $100.

That means no police record, no jail time, no worries (other than a hundred buck fine).

The result is that California has become the most liberal state in the union with respect to marijuana use. More significantly, the state has all but flicked the ashes of a joint in the face of the Feds. After all, it's still illegal to possess marijuana in California, leaving the state technically in compliance with national law; it's just a slightly inconvenient punishment if a law enforcement officer decides to issue the citation.

It remains to be seen whether the Justice Department will turn its head away from the new law or challenge it for flaunting federal authority. Inasmuch as Attorney General Eric Holder has already said that the federal government has better things to do than chase after marijuana users, a challenge seems unlikely. In addition, the Feds have already looked the other way from the 15 states that permit "medical" marijuana. So for Holder to come after California now may be a fight with little upside and major downside in the form of criticism for using national resources to attack a weak law.

Meanwhile, things seem a little brighter for marijuana users in California. And given a miserable economy, that may be something of a worthy consolation prize. From their perspective, maybe the legislature's finally done something right.

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