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July 20, 2012 12:20 PM Marijuana Policy and International Law

By Mark Kleiman

Commenting on Matt Yglesias’s essay about how cheap pot would be post-legalization, my old friend Kevin Drum notes that marijuana prohibition is built into the Single Convention on Narcotic Drugs and its successor international drug control treaties. Within the constraints of those treaties, what Kevin calls “decriminalization and wink-wink nudge-nudge lack of enforcement” are indeed all we could have at a national level.

But that doesn’t mean taxation-and-regulation needs to be completely off the table.

First, the treaties don’t bind the fifty states. The treaties explicitly recognize that the obligations they impose on the signatories are limited by those signatories’ own domestic constitutional arrangements, and it’s settled constitutional law that the federal government may not require a state to criminalize something, or force a state to help carry out federal law.

For example, if the Michigan proposal to simply repeal the state’s marijuana laws – parallel to what New York did with respect to alcohol in 1923 – had passed, Michigan would have been entirely within its constitutional powers, and no international law would have been violated.

The constitutional situation would become murkier if a state did something more complex: if it created a tax-and-regulation system, or even a system of distribution through state stores. When state law directly conflicts with federal law, the Supremacy Clause means that federal law wins. I think that means the federal courts would shut down a state-store system. In addition, the federal government might be able to effectively disable a state’s tax-and-regulation system by using injunctions or arrests to make it impossible for marijuana growers and dealers to comply with state laws. (As Jon Caulkins points out, that would give the feds a hard set of choices: they could prevent controlled legalization, but the result might be uncontrolled legalization.)

If a state were to tax and regulate, and the feds were to mind their own business (i.e., prevent interstate commerce but not mess with strictly intra-state production, sale, and use) then we’d have something much more like real legalization than, for example, the Dutch system is.

In addition, while even five years ago the treaties looked immutable, that’s much less true now. The U.S. could withdraw from the Single Convention and re-acceed to it with a “reservation” about marijuana. That would leave the other parties to the treaty with the option of accepting the reservation or kicking the U.S. out of the treaty system entirely. Or the U.S. could propose amendments to the treaties; we’d have company, though whether enough company to actually secure the 2/3 required for an amendment is doubtful.

So the treaties do create barriers to true legalization, but those barriers aren’t impassable.

Note this is all said without prejudice to the question whether legalization in one form or another would be a good idea. My own view is that some sort of legal availability for adults would, on balance, out-perform the current system. I also think that we’re likely to see national legalization within a couple of decades.

But the post-prohibition policy is likely to look more or less like current alcohol policy – modest taxes and weak regulations, with massive marketing of cheap products leading to widespread drug abuse – rather than the tighter system of high taxes and strong marketing controls I’d prefer.

In any case, I doubt the treaties will play much of a role in shaping the results.

[Cross-posted at The Reality-based Community]

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Mark Kleiman is a professor of public policy at the University of California Los Angeles.