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Reefer Madness At The Border

U.S.-Canada border crossing warning sign in a snowy scene with a pickup truck
photo by Tony Webster

A few weeks from now, Canadian citizens will gain the right to buy, sell and consume marijuana for recreational as well as medical purposes. But if they exercise that right, they may forfeit their ability to enter the United States.

Under The Cannabis Act, which became law in June, Canadians who interact with the marijuana marketplace within rules set by the province or territory in which they reside will not be breaking any laws, so it may seem strange that a citizen complying with the law of his or her home country could lose border-crossing privileges as a result. It is strange – but then, so is our federal legislative fantasy of a weed-free America.

Todd Owen, the executive assistant commissioner for the Office of Field Operations with U.S. Customs and Border Protection, spoke with Politico about the agency’s plan to apply existing rules to Canadian border crossings. While the agency will not make a policy of asking everyone crossing the Canadian border about their marijuana use, if it comes up organically – say, by the agent asking about the individual’s job – the consequences could be dire.

Canadians who work or invest in the cannabis industry risk a lifetime entrance ban. “We don’t recognize that as a legal business,” Owen said. He noted that citizens from other countries, including Israel, who invest in the marijuana industry have been denied entrance in the past. By the way, if we expect Canadians to be aware of the equity holdings in their mutual funds or retirement plans, we will be holding them to a standard that I’d guess 99 percent of Americans cannot meet.

Similarly, individuals who admit to ever using marijuana personally will become inadmissible. The traveler can apply for a waiver for future trips to the U.S., but that process takes months, costs $585 and is not guaranteed to work. And a “don’t ask, don’t tell” policy on the matter will only work as long as agents don’t ask. As Owen pointed out, lying to CBP officials can itself trigger a lifetime ban. The U.S. Immigration and Nationality Act bars entrance to any foreigner “who is determined to be a drug abuser or addict,” as well as anyone who “is or has been an illicit trafficker in any controlled substance.” According to Owen, the CBP is prepared to interpret this as “anyone who has ever used, paid for, or possibly touched marijuana,” regardless of the law in the country where he or she did so.

So Canadians face a bizarre Catch-22, in which cannabis is now legal, but carries the potential consequence of closing the door to ever crossing the southern border again.

Canadians should also forget about attempting to carry marijuana across the border, even though both Maine and Washington state have passed laws to legalize it. Travelers found in possession face prosecution or a fine of up to $5,000. That’s because CBP agents work for the federal government, not the states. As far as their bosses are concerned, marijuana is still illegal everywhere. Apparently, even for Canadians in Canada.

This position reflects the deliberate retreat from reality embodied in Attorney General Jeff Sessions’ policy toward marijuana. Sessions and his supporters have doubled down on the federal government’s position that marijuana is not only dangerous, but among the most dangerous drugs available. Even while many states now recognize that prohibition has done a great deal of damage in the form of keeping patients from a potentially helpful therapeutic option and wasting massive resources on enforcement and criminal penalties, Sessions has emphasized that he is not ready to surrender the misguided “war on drugs.”

Not only is this choice wrongheaded; it has caused a growing legal tangle as state and federal positions come into conflict. Banking trade groups have called for greater clarity, and ideally a solution that would allow them to work with marijuana businesses operating in states where their enterprise is legal, at least under state law. Federal Reserve Chairman Jerome Powell, too, has called for action. At a June press conference, he observed, “It puts federally chartered banks in a very difficult situation. It would be great if that could be clarified.” Lawmakers on both sides of the aisle have expressed support for shielding banks that provide services to marijuana businesses from penalties. Sen. Cory Gardner, R-Colo., and Sen. Elizabeth Warren, D-Mass., have also introduced legislation that would protect businesses from federal restrictions if they operate in compliance with state law. But as long as the incompatibilities between federal and state law remains, these partial workarounds are the best we can hope for.

Washington’s failure to keep up with the emerging medical and social reality of marijuana is moving from counterproductive to irrelevant to farcical. If the rest of the developed world legalizes pot, will we just close the borders for good? Hand out lifetime bans to millions of foreign visitors, businesspeople and would-be immigrants? Take a hair sample of everyone who shows up at an Immigration booth and analyze it for THC residue?

Or will we just update federal law to recognize the 21st century world in which we live, where marijuana is a problem mainly to the extent we choose to make it so, and where the drug enforcement industry is fighting a rear-guard action to keep itself gainfully employed?

I would say we should wait for this drama to play out, but first we’re probably going to have to put up with quite a bit of farce.

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