“Government-by-waiver” is not ideal. Rick Hess of the American Enterprise Institute has been a consistent and passionate critic of the Obama administration’s use of waivers to paper over deep problems with the No Child Left Behind Act and to impose its will on recalcitrant state governments. So why is government-by-waiver appropriate in the case of cannabis regulation and not K-12 education? The statute Kleiman envisions is fundamentally different from NCLB, which (in theory) “imposes blunt, uniform remedies for perceived institutional failings across varied schools and dissimilar communities,” in the words of Hess and Chester E. Finn Jr. These remedies were so blunt and so uniform that it became politically impossible to actually impose them, hence the waivers and the coercion they represent. NCLB represented an expansion of federal power over the states. In contrast, a law that formally and explicitly permits state governments to create regulated cannabis markets, provided they meet certain baseline standards, actually expands state power. Right now, the only thing state governments working to create such markets have to shield them against large-scale federal intervention is a nonbinding assurance from the Justice Department that could be reversed under the next president. Kleiman’s proposal offers something to supporters and opponents of legalization:

Though legalization has made headway in states with strong initiative provisions in their constitutions, it’s been slow going in other states in which legalization has to go through the legislature, where anti-pot law enforcement groups can easily block it. So it could be many years before legalization reaches the rest of the country or gets formal federal approval that removes the stigma of (even unpunished) lawbreaking from cannabis users. Rather than wait, legalization advocates might be willing to accept something short of full commercialization; some of them actually prefer a noncommercial system. Meanwhile, those who have been opponents of legalization heretofore might—with the writing now on the wall—decide that a tightly regulated and potentially reversible system of legal availability is the least-bad out-come available.

Kleiman acknowledges that the prospects for legislation along these lines are bleak, at least in the near term. There are, however, good reasons for conservative lawmakers to back such a proposal, ranging from its cultural appeal to responsible cannabis users and the ways in which it makes the federal relationship to states seeking to legalize cannabis less arbitrary and capricious.