As President Obama prepares to leave the White House and make way for President Trump on January 20, many Americans fear—with good reason—that the incoming administration will effectively nullify his presidential legacy.
Of all the things progressives fear about a Trump presidency, this is probably the one most anchored to reality. The Left’s most beloved Obama policy achievements—Obamacare and immigration policy (or lack thereof), for instance—were largely enacted through the executive branch or bureaucratic agencies under the president’s jurisdiction. The few that made it through Congress did so with little or no support from the Republicans who now find themselves in power.
But one hot-button issue Democrats have widely embraced, yet the Obama administration surprisingly rejected as a priority, is marijuana legalization. Indeed, Obama not only ignored it but also intentionally left it for the states to deliberate, indicating time and again that while it remains illegal at the federal level under the Controlled Substances Act, his government would not “spend resources trying to turn back decisions that have been made at the state level.”
While the bulk of progressive policy formed in the past eight years may soon be on its way out, marijuana legalization is poised to make more gains. Although largely dormant throughout the past several years, the trajectory of pot legalization—through the avenues of federalism laid out by our Founders, rather than the executive branch or the courts—provides a valuable lesson about why deferring to the states is the best system for both political parties to achieve meaningful reform.
Slow and Steady Wins the Race
The first state to legalize marijuana use in any form was California in 1996, when voters approved Proposition 215 on the November ballot. In the subsequent two decades, 28 other states and the District of Columbia have passed laws permitting medicinal use of the drug, either by ballot measure or the state legislature. In November, for instance, voters in Montana, Arkansas, Florida, and North Dakota approved medical marijuana initiatives.
The gradual progress of medical marijuana throughout the states paved the way for greater acceptance of recreational marijuana, which has become an ascendant issue. Washington and Colorado blazed the trail (pun intended) on this front when voters approved ballot initiatives four years ago. Now citizens in a total of eight states and Washington DC—equivalent to about 20 percent of the nation’s population—can use the drug recreationally. Of all five states with ballot initiatives on the issue this past November, only Arizona’s voters rejected legalization.
Despite some confusion due to the divergence between state and federal law, including questions of distribution, usage, and employment benefits, so far many states have implemented new drug policies smoothly. Colorado reported $700 million in sales in the first year recreational marijuana was legal, with increases each year since. In 2016 the nationwide market grew to about $7 billion.
Coupled with this massive industry growth has been only marginal increases in usage among adolescents in Washington and Colorado, the two states with the best available data. All the while, rich public debate at the local level rages on as the effects of the policy continue to materialize.
Surges in public opinion have accompanied these changes. A study conducted this year by Gallup shows 60 percent of the country approves legalization, double what it was when states began legalizing medicinal marijuana 20 years ago. Pew Research Center shows legal marijuana gaining popularity among all age groups, with 68 percent of millennials favoring legalization.
Congress, too, has responded: In 2014 it passed a bill prohibiting the Justice Department from spending resources imposing federal law on states where pot is legal to use medicinally. It nearly did so for recreational use as well. All of this suggests that going forward, Congress will continue to defer to the states as more vote to decriminalize marijuana.
Let States Solve Similar Issues
Marijuana regulation is just the type of political question best left to the states. Most everyone agrees that drug regulation is profoundly consequential for civil society. Although a majority of the country has approved deregulation in recent years, the issue remains deeply contentious and the country divided. Scientists continue to dispute the drug’s effects, with contrasting evidence used to bolster and oppose efforts to legalize.
Sound familiar? The same can be said for many of the domestic policy issues President Obama sought to resolve through the executive orders, bureaucratic regulations, and enforcement decisions of the past eight years—issues that are now at the mercy of President Trump’s administration precisely because of his methods of enforcement.
Take the administration’s sweeping directive over restroom and locker room usage, issued last year by the departments of justice and education. No states have any meaningful experience experimenting with this policy on a large scale, and no one knows for sure how to interpret gender identity within existing law (such as Title IX). The science behind gender identity is far from settled, and public opinion polls consistently show the majority of Americans disagree with regulating locker rooms on the basis of gender identity.
Or consider same-sex marriage. It was largely President Obama’s unilateral decision not to have the Justice Department defend the federal Defense of Marriage Act (DOMA) in U.S. v. Windsor (2013) that emboldened liberal federal judges to overturn state bans on gay marriage, a rapid trend that culminated with the Supreme Court legalizing it nationwide in Obergefell v. Hodges (2015). Before the intervention of the federal judiciary, 12 states had legalized it on their own and national public approval hovered around 55 percent—a political landscape strikingly similar to that of marijuana legalization today.
Yet because federal government chose political expediency over winning hearts and minds through public debate, Americans voted in an administration promising to undo Obama’s transgender decree, and activists across the country seem poised to make the issue of same-sex marriage more like abortion—which remains hotly contested 50 years after Roe v. Wade. Unilaterally legislating these issues (and others like immigration and health care) did not compel the rest of the country to fall in line as Democrats hoped, but provoked a vigorous backlash that will likely stymie progress on these policy issues for years to come.
Trump’s election has demonstrated the need for self-reflection among many Americans, and perhaps Democrats should acknowledge that circumventing our country’s federal system—as the Obama administration has done this past eight years—doesn’t go very far in achieving lasting progressive reform on the issues most important to them. If they don’t wise up to this fact, the freedom to get high might be their most significant policy reform for years to come.