When discussing marijuana reform, we often hear terms like decriminalization, legalization, and regulation. These terms have taken on a multitude of definitions and many of us have no idea what the words we are using mean. Frequently they are used synonymously. This is a potentially crippling problem, and its consequences are widespread. As stated in my introduction, I’m exploring a fundamental flaw in discussing marijuana reform. This first substantive post deals with two facets of the problem: demonstrating the problem and suggesting a definitional framework to fix it. The problem is this: it is very easy to fall into the trap of using decriminalization, legalization, and regulation synonymously. This is widespread and many of us are guilty of using these terms interchangeably.
A quick note, for this series, I am advocating the use of the word reform in its most neutral manner – changing the laws regarding marijuana. There are a million ways to do this, as best exemplified by Transform’s publication “How to Regulate Cannabis: A Practical Guide.” Transform’s guide will be used in later blog posts to place current reform schemes on the spectrum of state action created by the definitional framework.
In his article “Preemption under the Controlled Substances Act”, Robert Mikos puts forward a clear and easily understandable framework for discussing federal preemption. However, when he turns to marijuana reform, Mikos becomes guilty of perpetuating this problem. He is by no means the worst offender, but his article is extremely helpful as it demonstrates not simply the problem, but why it is important. Before we go on a crusade against anyone for his/her word choice, I want to make it clear that there is no single way to regulate marijuana – there are millions. I also want to emphasize that each of these possible reforms is distinct from one another and should no longer be used synonymously.
Mikos looks at marijuana reform under the lens of federal preemption of state laws. Federal preemption is triggered when both the federal and state governments have laws on the same issue. Generally speaking, federal law is the supreme law of the land, and Congress can therefore void state laws if it so chooses. Those last four words are key – and as Mikos explains, any preemption question requires asking what Congress intended.
In looking at marijuana reform through the federal preemption lens, there are three different brands of preemption that must be accounted for: field preemption, direct, and obstacle preemption.
Given our current state of congressional gridlock, it’s hard to imagine what 535 members intended by voting on a single bill. Fortunately, sometimes Congress makes it easy for us. This introduces our first brand of preemption: field preemption. Field preemption occurs when Congress has explicitly stated that it intends of occupy the entire field of legislation on a particular issue. A state is therefore unable to make valid law on the issue. However, the Controlled Substance Act specifically states that it does not occupy the field, and Mikos argues that field preemption is not relevant to marijuana reform.
However, the other two brands of preemption are implicated by marijuana reform. Mikos calls these direct and obstacle preemption. A direct preemption occurs where it is physically impossible to follow both state and federal law. Obstacle preemption is where a state law gets in the way of accomplishing the full purpose of Congress. Mikos also introduces a counter concept to preemption: commandeering. Commandeering prevents the federal government from forcing a state to make a law.
While Mikos successfully defines preemption, his argument begins to run afoul of the terms specific to marijuana when he casually uses terms like decriminalization, legalization, and regulation. Mikos attempts to connect the brands of preemption and commandeering to different styles of reform schemes. It is easy to see how this can be useful – if one type of reform invokes a specific kind of preemption, policy makers can take steps to minimize their exposure to federal preemption.
In failing to define decriminalization, legalization, and regulation, Mikos has run afoul of one of the biggest problems facing marijuana reform: we have no idea what these words mean. When discussing commandeering, Mikos defines legalization as removing state laws and regulation as creating state laws. However, he uses the term regulation throughout to refer to a wide range of possible reform schemes. Mikos also refers to states that have legalized marijuana and elaborates by discussing decriminalization. What started out as a brilliant way of categorizing various reform schemes in terms of their federal consequences is muddled by a lack of clarity as to what those reform schemes are.
To remedy this, and prevent further confusion, I am proposing a linguistic shift in terminology when discussing marijuana reform. First, the words legalization and regulation have become broad beyond saving. They can continue to be used in that broad sense (like reform), but when discussing the specifics of a reform scheme, they should not be used in the same manner. Instead, I propose a spectrum with three points on it. Each represents a level of state action – many reform schemes may be at one place on the spectrum as to an issue like taxation, but on another in regard to criminal penalties. As such, these are extremes – it is doubtful any reform scheme will be fully contained by a single term.
Total Decriminalization: A reform scheme in which a state has removed any law regarding marijuana from its books. Growing, possessing, and selling marijuana are not forbidden by state law, but they are also not regulated or controlled by any state agency. Total Decriminalization falls squarely within the commandeering principle and involves no action from the federal government. This is distinct from the somewhat loose use of the word decriminalization to describe a state that has significantly reduced penalties for marijuana possession. Total Decriminalization has no preemption implications – as commandeering prevents the Federal Government from forcing a state to pass a law, the federal government cannot prevent a state from repealing a law.
State Regulation: A reform scheme where the state has laws allowing marijuana use, growth, and sales, and regulates third parties. The state authorizes individuals to grow, sell, and use subject to state regulation. This most squarely falls inline with Mikos’ definition of obstacle preemption – arguably the easiest form of preemption for a state to fight. In a State Regulation reform scheme, a state would only have to show that its reform did not get in the way of the intent of the CSA.
State Participation: A reform scheme where the state has a direct role in production and sale of marijuana. Instead of private parties growing marijuana subject to the state regulations, the farm would be owned by the state and the farmers would be state employees. Likewise, all sales would be done by government agencies. State participation closely follows direct preemption – something much more difficult for a state to fight than obstacle preemption.
By shifting to using these three terms Mikos’ preemption argument becomes clearer, and abundantly more useful. As we will see over the remainder of this blog series, the linguistic efficiencies granted by this framework are significant and resolve many simple issues to allow time to be focused on more complex policy choices.