Cannabis advocates such as ourselves consistently tout federal legalization of weed as a magic elixir to all of the industry’s problems and imperfections. It is a “magic” elixir in that it seems like only an act of magic could make it happen as quickly as we’re hoping it would.
But we’re also acutely aware that by no means is legalization a perfect elixir. It would require both preemptive and continuous work from Congress, states, and private businesses, and there’s really only one chance to get it right. Moreover, the way current marijuana legislation fails to acknowledge an overlooked clause in the U.S. Constitution, this chance, as well as the legal cannabis market, remains threatened.
The article’s title comes from the first Iron Man film where, upon seeing Tony Stark’s miniaturized arc reactor for the first time, his business partner (and later nemesis) Obadiah Stane wishes to capitalize on the newfound discovery. However, he warns Tony they must proceed carefully and discreetly, thereby shunning any “ready, fire, aim” approach that involves acting rashly or irresponsibly and without the other’s knowledge.
It’s soon revealed that Obadiah had evil and selfish intentions for the Iron Man technology; could Tony have seen the betrayal coming? In that same spirit, Congress and the states must thoroughly and cooperatively deliberate the logistics of legalization so that neither party compromises the other’s success, or gets tied up in litigation over preventable matters.
Legally speaking, the most preventable matter that Congress can address is to draft legislation that specifically suspends the Dormant Commerce Clause (DCC) of the Constitution. The DCC prevents states from enacting—or having on its books—laws that interfere with or discriminate against interstate commerce.
In response to federal prohibition, states have created cannabis-friendly policies that benefit them only. Federal legalization, without a DCC-nullifying component, in turn renders every one of those state laws moot. Not only is it tenuous just in a legal sense, but also unfair to the states who’ve borne the burden of demonstrating how a legalized marketplace can (and should) function. States have thus far been the only ones to set the example and should not then be penalized for it.
State laws governing the cannabis industry do far more than simply keep resulting profits within a state’s borders. Particularly where recreational use is legalized, these laws also tend to prioritize restorative justice and social equity initiatives, focusing on communities disproportionately impacted by the war on drugs. These represent the foundation upon which all legalization measures should be based, let alone those at the federal level. It’s too much work to just get canceled instantaneously with the stroke of a pen.
Until the federal government has devised a firm strategy on how exactly to implement legalization (which obviously wouldn’t happen overnight), Congress can pause the DCC and allow states to retain their cannabis laws so the latter can continue their social justice work. Simultaneously, Congress must create new legislation, for example, that disqualifies individuals seeking business licensure not on the basis of previous drug convictions, but more white-collar, financial-based crimes (i.e., fraud, tax evasion, and money laundering). Regulating cannabis cultivation at home and the amount available for personal use is another law to consider. Finally, the market share and antitrust implications of any player in the ecosystem should be front-of-brain for us all.
Nationwide legalization of cannabis would represent the largest joint venture between the federal government and states in quite some time. When it happens, might its oversight be transferred from the DEA to, say, the ATF?
Should that transpire, the agency’s name should be rearranged to “Firearms, Alcohol, Cannabis, and Tobacco.” This is because it’s a FACT that although we eagerly await access to legal weed across the country, we understand the ramifications of a federal system that doesn’t respect—and isn’t at least partially based on—the model provided by states.