A Felony for Farming

Section IThe Right to Enter

Begin with the principle, because everything that follows is an application of it.

Americans generally understand liberty in commerce as the right to purchase what we please. That is the smaller half of it, and the less important half. The older and more consequential freedom is the right to enter: to open a shop, plant a crop, hang out a shingle, and offer your work to strangers who may take it or leave it. A man who may buy anything but sell nothing is a consumer. A man who may enter a trade on his own initiative is a citizen with a livelihood in his own hands.

Every free society draws a line between two kinds of government involvement in that freedom, and the whole of the argument in this essay turns on the distinction. The first kind is a rule. A rule tells you how you may trade: label your product honestly, do not sell to children, keep your scales true, answer for what you put in the bottle. Rules apply to everyone who enters, they are knowable in advance, and no official decides which of us they favor. The second kind is a charter. A charter tells you whether you may trade at all, and it is issued by an official, in a fixed number, to applicants he selects.

Rules are compatible with liberty. Indeed, rules are what make liberty durable, because a market without honest weights collapses into fraud and then into the arms of whoever promises to clean it up. Charters are something else. A charter converts a right into a privilege and a citizen into an applicant.

And a charter does not sit still. It has a direction it drifts in, and the drift is a matter of arithmetic rather than of anyone's character. Once entry is capped, the worth of the charter ceases to be the worth of the business and becomes the worth of the exclusion. A permit in an open market is worth the filing fee. A permit in a market closed at fifteen is worth whatever every excluded competitor would have earned, and that figure becomes a standing prize offered to whoever controls the cap. No one lobbies to be the sixteenth brewery in Texas, because there is no sixteenth place to purchase. The cap itself manufactures the incentive.

This is why a charter system operates as a cartel whether or not a single official is dishonest. Corruption is not the precondition of the arrangement. It is the product of it. An entirely upright administrator holding a fixed number of licenses is still an upright man standing beside a very large prize, and he will be standing there every day for the rest of his tenure, approached by people with a great deal to gain and the patience to wait. Rules do not generate that pressure, because a rule creates no scarcity to be allocated. Only a cap does.

Hold that distinction. It is the only tool you need to understand what happened to hemp in America.

Section IIThe Door Congress Left Open

The 2018 Farm Bill did not intend to create a national market in intoxicating hemp. It intended fiber, grain, and cannabidiol. Congress wrote a definition, cannabis containing not more than three-tenths of one percent delta-9 THC on a dry weight basis, and in writing it left a door standing open that the plant itself walked through.

Read the definition carefully, because the entire dispute turns on it. The statute names one molecule. Not total THC, not potential THC, not what a substance becomes when you set fire to it. Delta-9. The plant, meanwhile, does not primarily produce delta-9. It produces tetrahydrocannabinolic acid, THCa, the carboxylated precursor that converts to delta-9 only under heat. Raw flower rich in THCa sits comfortably beneath the statutory line.

This is called a loophole. The word deserves examination, because it does a great deal of quiet work. A loophole is an unintended gap that clever parties exploit against the plain sense of a law. But the sense here is plain. Congress specified a molecule with precision. The two places in the statute referencing post-decarboxylation testing both appear in the provisions governing production, the criteria state and tribal plans must satisfy to regulate cultivation. Once a crop is tested within thirty days of harvest and passes, federal law requires no further test, and the operative metric for harvested material is what the statute says it is.

Nor is this the reading of a lone advocate. In September 2024 the Fourth Circuit reaffirmed that the 2018 Farm Bill looks to delta-9 concentration and not total THC. The Drug Enforcement Administration's contrary view, that decarboxylation converts THCa to delta-9 and must therefore be counted, lives in an opinion letter signed by a section chief. It was never promulgated as a regulation, never subjected to notice and comment, never defended in rulemaking. An agency letter is not law. It is an agency's preference on letterhead.

So the honest description is not that anyone found a loophole. Congress wrote a rule in plain terms. Farmers read the rule and grew to it. Retailers read the rule and stocked to it. Courts read the rule and confirmed it. Americans arranged their livelihoods around a published federal standard, which is precisely what a citizen in a nation of laws is invited to do.

That is worth stating plainly, because it is a liberty point and not a technical one. The capacity to read a law, rely on it, and build a life on the reliance is the ordinary man's entire protection against arbitrary power. When the law is changed under him after he has relied on it, and the change arrives with a criminal penalty attached, something more fundamental than a market has been disturbed.

Section IIIWhat Free Entry Built

What grew in that open field is the most interesting economic story in American agriculture this decade, and hardly anyone has told it properly.

There was no cap on how many of you there could be. No license auction. No scoring rubric. No requirement to secure real estate for years before an agency decided whether you were worthy. No subsidy, no allocation, no protected territory. A farmer with land and a producer license could grow. A retailer with a storefront and a consumable hemp registration could sell. Ordinary banking. Ordinary tax treatment. Ordinary bankruptcy protection if it went badly. Interstate commerce, like any other lawful crop.

The market responded exactly as anyone who believes in markets would predict. It filled up. In Texas alone the Department of State Health Services counts roughly fourteen thousand licensed consumable hemp retailers. Nationally the industry reached the neighborhood of thirty billion dollars in seven years, on nothing but demand.

Look closely at who those fourteen thousand are, because the abstraction hides them. They are smoke shops and feed stores. Family farms in the Panhandle that watched cotton contracts erode for two decades and found a crop that penciled out. Veterans who mustered out and opened a storefront with a separation check. Second-generation convenience store owners who added a cooler. Small processors in metal buildings on the edge of small towns. The overwhelming majority employ between two and twenty people and signed personal guarantees on ten-year leases.

None of them asked anyone's permission. That is not a defect in the story. That is the story.

When those leases are abandoned the landlord is not made whole by anyone. The bankruptcy is a real bankruptcy, filed by a real family, in a real federal courthouse, and the cost falls on creditors and eventually on the public. There is no version of this transition that is free, and the people paying for it are not the people who chose it.

Section IVLiberty Is Access, Not Merely Product

The freedom at issue is not only the seller's. Consider the buyer, and consider a particular buyer, because the point becomes concrete in his hands.

A veteran with chronic pain has a limited menu. The Department of Veterans Affairs cannot prescribe cannabis, federal law forbids it, and VA clinicians are constrained even in offering guidance about products they know their patients are using. What the VA can prescribe, and does, is opioids, and the consequences of that arrangement have been counted in mortality statistics for twenty years.

Roughly four in ten military veterans with chronic pain report using medical cannabis to manage symptoms. Research published in the journal Pain, applying causal inference methods, found medical cannabis at least as effective as prescription medication for chronic pain, with many patients reducing opioid use. The Department funds this line of inquiry itself, including a $7.4 million grant under the Veteran Marijuana Research program now underway at Michigan. Randomized trial evidence remains limited and the ecological findings are mixed, and this publication will not overstate them. What is not in dispute is that a very large number of Americans have made this substitution deliberately and report that it worked.

Now attend to the shape of the two doors available to that man, because this is where liberty actually lives and it is invisible if you look only at the molecule.

What the hemp counter asked of him

Walk in. Pay. Leave. No physician gatekeeper. No entry in a state registry. No prescription record to surface later in a clearance renewal or a custody proceeding. No question triggered on a federal firearms transaction record, because he was not an unlawful user of a controlled substance. Twenty dollars, and his name recorded nowhere.

What the licensed route asks of him

Locate a registered physician. Qualify under a condition list written by a legislature. Consent to entry in the Compassionate Use Registry of Texas, a state database of every person in the program. Purchase from one of fifteen dispensing organizations, three of which are actually operating. And carry, permanently, the collateral consequences attaching to a documented user of a federally scheduled substance.

That is not the same transaction with a different receipt. It is the difference between a free man buying a lawful good and a registered subject drawing an approved allotment. Whatever else may be said for the second arrangement, it is not an expansion of freedom. It is access conditioned on enrollment.

The vine and the fig tree are the oldest picture we have of ordinary sufficiency on one's own ground, unmolested. It is a picture of a man who does not need to be approved of in order to eat. Whatever one concludes about this plant, an arrangement in which a citizen must be entered in a registry to obtain what his neighbor may not sell him at all is not that picture.

Section VThe Bargain This Nation Already Struck

There is no need to relitigate whether a free people may lawfully purchase an intoxicant. America answered that question, at national scale, by constitutional amendment, in December 1933.

The answer was not that intoxication is admirable. Nobody claimed that then and nobody need claim it now. The answer was narrower and far more durable: that prohibiting a substance large numbers of adults intend to use produces criminal syndicates, corrupted enforcement, adulterated product, and contempt for law itself, and produces them reliably enough that the cure is worse than the disease. Having learned it at great cost, the country wrote the lesson into the Constitution and moved on.

What replaced prohibition was not permission and not chaos. It was a regulatory settlement, and it is worth naming its parts because they are the very parts hemp is now denied. Twenty-one and up, enforced by carding, with the licensee bearing the loss when he fails. Labeled proof, so a purchaser knows what he has bought. Producers, distributors, and retailers licensed, inspected, and subject to revocation, but not limited in number. Excise taxation. Advertising restrictions. Liability for serving the visibly impaired. A brewery in Fredericksburg does not petition for one of fifteen charters. It obtains a permit, follows published rules, and lives or dies on whether anyone likes the beer.

Set the two substances side by side and the asymmetry is difficult to explain by evidence. The Centers for Disease Control attributes roughly one hundred seventy-eight thousand deaths a year in the United States to excessive alcohol use, shortening the lives of those who die by an average of twenty-four years, at an economic cost the agency estimated at two hundred forty-nine billion dollars. Cannabis has no comparable figure, because there is no established lethal dose. And yet no legislator in Austin has proposed making a bottle of bourbon a state jail felony, or capping at fifteen the number of Texans permitted to sell beer.

We settled how a free country handles an intoxicant. We simply declined to apply the settlement to this one.

Ten Words Press

What accounts for the difference is not data. It is inherited fear, manufactured in the nineteen-thirties by the same decade that repealed one prohibition and immediately built another, on the strength of a propaganda film and a tax act rather than a single controlled study. That the fear has outlived every generation that first believed it is not an argument for keeping it. It is an argument for finally noticing it.

And notice what the fear now costs. In Texas, possession of a product that was lawfully on a shelf in July is, since the thirty-first of that month, a state jail felony carrying one hundred eighty days to two years and a fine reaching ten thousand dollars. No legislator voted on that penalty. It followed automatically from an agency's placement of these compounds in Schedule I. The Legislature had passed Senate Bill 3 and the Governor vetoed it, on the express ground that criminalization was the wrong instrument. The prohibition arrived anyway, by rule.

Section VIRules Are Not the Opposite of Freedom

The charge against this industry is that it wants no rules at all. It deserves a direct answer, because for a period the charge had teeth. In the early years plenty of operators argued that lawfulness was sufficient, sold to eighteen-year-olds where state law permitted, and shipped converted product with no third-party certificate of analysis anywhere in sight. That happened, and pretending otherwise would surrender the honest ground.

The record now says something different, and it says it in the one place where a statement costs the speaker something. Hemp plaintiffs challenging the Texas rules have come into court conceding the regulatory tier of age restriction, packaging standards, and labeling requirements, and contesting only the scheduling. A press release supporting sensible regulation is free. A concession in a pleading binds the party who makes it and narrows what he may later argue. What these plaintiffs are contesting is not whether they may be governed. It is whether they may be imprisoned.

At the federal level the same position exists as legislative text. Representative Andy Barr's Lawful Hemp Protection Act would regulate and tax hemp-derived products rather than ban them: age limits, mandatory third-party testing with published results, per-serving dose caps, child-resistant packaging, marketing restrictions, and licensure with revocation as the enforcement mechanism, which is how every other consumable industry in America is policed. Name a harm that has been cited and there is a provision addressing it.

Return now to the distinction from the opening. Every measure in that list is a rule. Each tells a seller how he must conduct himself, applies identically to everyone who enters, and is knowable before he risks a dollar. None of them decides in advance which fifteen Americans may participate. A free market is not an ungoverned one. It is one where the government sets the terms of the road and then declines to choose the drivers.

Which leaves one question, and it has never received an answer. If every stated harm is addressed by rules the industry has formally accepted, what work is the felony doing?

Section VIIThis Was Not Done to Conservatives. It Was Done by Them.

Nothing in this essay is a partisan argument, and the record makes partisanship impossible. Texas Republicans hold every statewide office, both chambers, and the agencies. Whatever happened here was done by conservatives, to conservatives, in a state that advertises itself to the nation as the last redoubt of free enterprise. The fault line does not run between left and right. It runs between men who believe a citizen may enter a trade without asking, and men who believe an agency should decide.

Names belong in this, because the acts are public and the men are on the ballot.

Lieutenant Governor Dan Patrick

Senate Bill 3 was his priority, and he has never disguised what it was about. When the Governor vetoed it, Patrick held a press conference and put the matter to the voters himself: he was not going to legalize marijuana in Texas, and if people wanted to vote him out of office for that, so be it. That is a fair offer, fairly made, and it deserves a fair answer at the ballot box on the third of November, where he faces Vikki Goodwin for a fourth term.

He also offers a number. Patrick has said that seventy-two percent of voters who voted Republican in the last three primaries support banning all THC. Set beside it the April 2025 statewide survey by the Texas Politics Project at the University of Texas, which found fifty-five percent of Republicans believe the state's cannabis laws should be less strict or left as they are, against forty percent who wanted them stricter, and fewer than a third of voters of all persuasions favoring stiffer laws. Both figures cannot describe the same electorate. One of them is going to be tested in November.

Governor Greg Abbott

He vetoed Senate Bill 3, and his stated reason was not sympathy for the industry. It was that the measure invited valid constitutional challenges that would tie it up in court for years. He called a special session to write something better. When the Legislature produced nothing, he issued Executive Order GA-56 in September 2025, directing the health department, the alcoholic beverage commission, and the Department of Public Safety to bar sales to minors, require government identification at the point of sale, and impose license revocation on retailers who sell to children. The Governor's own announcement described the order as protecting Texas children while respecting federal law and protecting the liberties of responsible adults.

That sentence is the whole regulatory case, written by the Governor of Texas. And honesty requires noting the other half of the same order: GA-56 also instructed the health department to revise its testing requirements so that total delta-9 content would account for the conversion of THCa. The Governor did not merely fail to prevent what followed. Part of the direction came from his desk.

Which is precisely why he is the one man positioned to correct it. Rules of this kind are proposed by the executive commissioner of the Health and Human Services Commission on behalf of the department, and that commissioner serves at the Governor's appointment. What was done by rule can be undone by rule. Failing that, he holds the power to call the Legislature back and demand the regulatory framework he asked for in his veto proclamation and never received. He has already written the standard. He need only enforce it against his own agencies.

Attorney General Ken Paxton

The Attorney General has not been absent from this. He is a named defendant in the federal suit, which means the office is not standing aside while the courts sort it out. It is defending the rule. That is a lawful function of the office and no scandal in itself, but it is worth stating plainly rather than describing him as silent. Texans who assume their Attorney General is somewhere in this fight on the side of the fourteen thousand should know which table he is sitting at. He is also on the November ballot statewide, as the Republican nominee for the United States Senate against James Talarico.

What is actually being wagered

No one need predict that Texas turns. The wager is narrower than that and more interesting. Roughly fourteen thousand licensed retailers, their employees, their landlords, their suppliers, the farmers who sold to them, and the customers who shopped there constitute a constituency that did not previously think of itself as one. It is disproportionately rural, disproportionately small-business, disproportionately veteran, and it voted Republican. It has now been told that the trade it entered lawfully is a state jail felony, by rule, after the Governor vetoed the bill that would have done it by vote.

Parties do not usually lose states. They lose margins, they lose enthusiasm, and they lose the volunteers who used to make the calls. A party that manufactures a hundred thousand disappointed conservatives in an election year has not committed suicide. It has simply spent something it did not have to spend, on a policy its own Governor called legally flawed, for a result its own voters did not ask for.

Section VIIIThey Already Voted

Strip away the chemistry, the litigation, and the legislative history, and a single question remains: who decides which lawful goods reach a market?

There are two available answers. In the first, an agency scores applications, issues a fixed number of charters, and the winners serve whoever is left. In the second, anyone may enter, and customers decide by purchase who survives. The first produces order, predictability, and rents. The second produces disorder, competition, and prices that fall toward cost.

Americans say they prefer the second. Texas says it loudly, in every economic development advertisement it buys. And then, presented with the purest example of the second to appear in a generation, an industry with no cap and no charter that grew to thirty billion dollars on demand alone, the response was to abolish it.

Here is what makes this different from an ordinary policy dispute. The people had already voted. Fourteen thousand storefronts is not a regulatory failure, it is an election result, held daily, in cash, with a turnout no ballot measure in Texas history has approached. Every one of those shops exists because somebody walked in and bought something. Nobody was compelled, nobody was subsidized, and nobody needed a hearing. That is the pocketbook doing precisely what free-market conservatism says it should do.

And it was overturned. Not outvoted, not out-argued in a chamber, not repealed by the men Texans elected to repeal things. Overturned by rule, after the bill failed and the veto held. Which means the usual answer, let the market decide, is no longer available as advice. The market decided. The decision was set aside. There is exactly one instrument left to people who object, and it is the ballot.

Understand what liberty is doing in this argument, because it is not a synonym for permissiveness. Nothing here contends that intoxicants should reach children, that labels should be free to lie, or that a manufacturer should sell an uncharacterized compound to a stranger. Liberty in the older and more useful sense is the right to enter a lawful trade without a magistrate's leave, to carry the risk of your own venture, and to be judged by customers rather than by a scoring rubric. The state may set the rules of the road, and may punish those who break them. It may not decide in advance which fifteen people are permitted to drive.

Two dates now govern what remains. Section 781 of Public Law 119-37 rewrites the federal definition of hemp from delta-9 alone to total THC and caps finished products at four-tenths of a milligram per container, effective the twelfth of November. The continuing resolution bought less than reported: it does not move that date, it merely narrows the provision's reach to synthesized cannabinoids until the eleventh of December. Four weeks, not a reprieve.

Two instruments remain in Texas and deserve more attention than they have received. Senate Bill 14, the 2025 Regulatory Reform and Efficiency Act, codified that Texas courts owe no deference to a state agency's legal determinations and must review questions of law independently. And Article I, Section 26 of the Texas Constitution declares perpetuities and monopolies contrary to the genius of a free government and provides that they shall never be allowed. The federal courts have not yet reached the merits; a district judge declined in August to lift the ban on the threshold ground that irreparable harm had not been sufficiently shown, which is a ruling about timing rather than about whether the rule is lawful.

When the merits are reached, the question will be simple enough for any Texan to follow. The same plant, grown by two men, is a licensed enterprise in one pair of hands and a felony in the other. Let the difference be explained. It cannot be the chemistry, which is identical. It cannot be the harm, since the industry has already accepted every control the harm would justify. It cannot be the morality, which this country settled in 1933 and applies without hesitation to a substance that kills a hundred seventy-eight thousand of us a year.

What is left is the permission. Fifteen of them, held at a fixed number, with every excluded competitor's livelihood folded into the value of each one. A country in which permission is the difference between a trade and a felony conviction has not merely closed a market. It has built the standing prize that will shape every decision made about that market from now on, and it has traded something it will not easily get back.

A word in my own voice

I am a Republican. I have never voted for a Democrat for statewide office in Texas and I did not expect to spend an August writing this.

My quarrel is not with anyone's view of the plant. Texans may hold whatever opinion of it they please, and mine is beside the point, which is exactly the argument I have been making for eight sections. What has me angry is that we are carrying a list of genuine emergencies in this state, property taxes that price retirees out of houses they own outright, a grid that still worries people every August, water, schools, the border, and the men who hold every lever of power in Texas found the time to make felons of fourteen thousand small business owners by administrative rule. Not by a vote. By rule, after the vote failed. Whatever that is, it is not conservatism, and it is not the free market, and I decline to keep calling it either merely because the people doing it have an R beside their name.

The honest place to settle this was the primary, and it went by in March without most of us noticing what was at stake. That door is closed until 2028. What remains is November, and I will say plainly what I am weighing, because I suspect a good many Texans are weighing the same thing and have not said it out loud.

I am not becoming a Democrat. I do not intend to adopt anyone's platform, and I disagree with the opposition on most of what I care about. But a party that can count on my vote no matter what it does to me has no reason to stop doing it. The vote is the only leverage an ordinary citizen holds, and leverage that is never used is not leverage. It is a habit.

So this is the question I would put to every conservative in Texas who has read this far, and I put it to myself first. If free markets, limited government, and the rule of written law are principles rather than slogans, what exactly is the consequence when the people we elected abandon all three at once? If the answer is nothing, we should stop saying we believe in them.