Border Marijuana: Stamp It, Don't Seize It

The drug prohibition era began through the implementation of tax and certification regimes not with a zero tolerance mandate. Initially, it was widely accepted in Congress and among law enforcement agencies that there were legitimate medical uses for opiates and even stimulants.

The Harrison Act of 1914 aimed to end the recreational market for heroin, opium, and cocaine but was not intended to stop physicians from prescribing narcotics. The Harrison Act was self-described as "An Act To provide for the registration of, with collectors of internal revenue, and to impose a special tax on all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give opium or coca leaves, their salts, derivatives, or preparations, and for other purposes." 

Although the objective of the Harrison Act was to regulate the domestic market, the legislation ushered the Customs Agency Service (later Customs Service and currently divided into Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP))  into drug control in a major way for the first time -- both because the agency was empowered to enforce the act at the border and also because this first foray in drug-prohibition legislation led to a boom in cross-border drug smuggling.

Marijuana was not on the radar of drug prohibition proponents at the time the Harrison Act became the law of the land. By the 1930s, however, drug prohibition advocates had succeeded in instituting marijuana bans in several states. But the U.S. government didn’t see marijuana as the threat to public health, public safety, and national security, as it currently does. At the time, community healers and the medical sector were still exploring the medicinal and therapeutic uses of marijuana, and U.S. businesses were legally selling hemp fiber, oil, and seeds.

In its Narcotics Manual of 1927, the U.S. Customs Agency Service stated: “Neither is there any Federal law specifically regulating the importation of Marihuana, but by regulation under the Food and Drugs Act, Collectors of Customs are directed to refuse delivery of all consignments of Marihuana, unless the importer shall first execute a penal bond conditioned that the drug referred to will not be sold or otherwise disposed of for any purpose other than in the preparation of a medicine.”

The federal government gradually began cracking down harder on marijuana distribution both in the domestic market and on the border. The U.S. Border Patrol was created in 1924, but it was not until the late 1930s that the agency was given a clear mandate about marijuana enforcement.

Congress passed the Marijuana Tax Act of 1937, which brought cannabis into the drug control structure established the Harrison Act for heroin, opium, and cocaine. A high tax was levied on marijuana distribution by this 1937 drug act, whose main proponent was Harry Anslinger, the antidrug crusader who was commissioner of the Federal Bureau of Narcotics. Under the provisions of the Marijuana Tax Act, the federal government made marijuana control its business for the first time -- through regulation of the importation, cultivation, possession, and marketing of the cannabis plant.

Although not explicitly prohibited, the anti-narcotics legislation put marijuana for the first time in the same regulatory framework used to crack down against heroin, opium, and cocaine – whose principal victims were the poor and people of color, not the predominantly middle- and upper-class consumers.

It remained legal to import marijuana into the country, and the U.S. Customs Agency Service did collect taxes and affix a certifying stamp on burlap bags of marijuana that met its requirements for legal use and sale. But the end result was that marijuana fell subject to an increasingly restrictive regularly climate that by 1970 evolved into complete drug prohibition.

Richard Nixon became the first drug warrior in the White House. Under his leadership, Congress passed the Controlled Substances Act of 1970, under which marijuana was classified as a Schedule 1 substance, along with heroin, MDMA, LSD, peyote, psilocybin, and other substances.

At the time that Congress passed the Marijuana Tax Act, the U.S. Customs Service Agency was not preoccupied with securing the border against crossborder flows of marijuana, as the Department of Homeland Security is today. The agency’s narcotics manual noted: “Marihuana may be cultivated or grown wild in almost any locality. Inasmuch as this drug is so readily obtained in the United States, it is not believed to be the subject of much organized smuggling from other countries.”

But the federal government’s steady move away from noninterference toward regulation, enforcement, and prohibition has resulted in a boom in marijuana smuggling, horrific drug-war violence in producer and transition countries, and mass criminalization and incarceration in the United States.

Today, the Customs and Border Protection agency, especially the Border Patrol, has made marijuana enforcement the chief operative focus of its border security mission. One can only speculate at what point will the federal government begin reversing its border control practices, perhaps by once again taxing and stamping marijuana imports. Or even -- with the advance of a medical marijuana and marijuana legalization -- end the agency’s misguided and ineffective commitment to marijuana enforcement entirely?

Recalling the scenario described in the narcotics manual of the mid-1930s, we may see the future of marijuana.

It just may be possible that some day, sooner than we think, we could see a time when marijuana is again grows throughout the United States outside of a drug prohibition regime, thereby displacing the Mexican and other foreign suppliers, ending the need for so much “border security” spending, and undercutting the foreign drug warriors – both the legal and illegal ones.