The Volokh Conspiracy
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Earlier today, Attorney General Jeff Sessions announced that he will rescind an Obama-era Justice Department policy limiting federal prosecution of marijuana users and distributers in states that have legalized cannabis. For reasons well-summarized by co-blogger Jonathan Adler, this is a bad decision on both policy and legal grounds.
In the short run, the impact may be relatively minor. The Obama policy offered far from complete protection to cannabis businesses. To the contrary, as I explained back when the policy was first instituted in 2013, it included numerous exceptions that in practice allowed federal prosecutors to go after almost any marijuana producer they had a strong desire to target. Because federal law enforcement resources are limited and the federal government often relies heavily on state and local cooperation in drug cases, it is unlikely that the Justice Department will be able to target more than a small fraction of the new legal cannabis industry.
Nonetheless, the Sessions policy reversal is potentially very important. At the very least, it signals a new, more aggressive federal posture towards states that have legalized marijuana. The Attorney General's new stance is a signal to federal prosecutors and law enforcement officials that the Justice Department supports stronger efforts to undercut legalized marijuana markets in the states. If Sessions did not intend to send such a signal, there would have been little point to his action.
And while the feds may not have the resources to go after the vast majority of marijuana sellers, even targeting a few could have a major chilling effect. Businesses will be reluctant to operate in the open if there is even a modest chance that the feds will target them, subjecting the owners to the risk of losing their investment and facing prison time. That may be even more true for investors and financial institutions that work with this newly legal industry.
Since 2012, eight states have legalized recreational marijuana, including such major ones as California (where legalization has just gone into effect), Colorado, and Massachusetts. Legal businesses involved in selling marijuana may be reluctant to do so if they face a potential federal crackdown—even one that is unlikely to directly impact the majority of them. This in turn, could drive much of the marijuana industry back in to the black market, where it would once again promote violence and organized crime of the sort that have been a major product of the War on Drugs. Jeff Sessions likes to pose as a great scourge of criminal drug gangs, such as MS-13. But such gangs are likely to be among the major beneficiaries of his efforts to renew the federal war on marijuana.
Sessions' new marijuana policy should be considered in conjunction with his expansion of asset forfeiture, policies that allow the government to confiscate property that may have been used in the commission of a crime, even if the owner has never been convicted or even charged with any offense. If the feds target newly established marijuana businesses in states that have legalized pot, they can use civil asset forfeiture to seize the owners' property, even if those owners are not convicted of a crime. The prospect of such treatment could potentially be a major deterrent to participation in the marijuana industry.
Like his asset forfeiture policy and his attack on sanctuary cities, Sessions' effort to target marijuana in states that have legalized it is an assault on constitutional federalism, as well as terrible policy. It undermines state autonomy on a policy issue where there is little, if any justification for federally imposed uniformity. Admittedly, as Damon Root points out, the policy is consistent with a series of dubious Supreme Court decisions. The most notable is Gonzales v. Raich (2005), which held that Congress's power to regulate interstate commerce allows it to ban the possession of medical marijuana that had never been sold in any market or crossed state lines. Raich is a terrible decision that principled conservatives—and others who care about enforcing constitutional limits on government power—should be trying to overrule. They should not be exploiting it to impose federal prohibition on unwilling states.
Some defenders of the Sessions policy will no doubt claim that he is just trying to "enforce the law." But in a world where we have vastly more federal law than any administration can even come close to enforcing, it is inevitable that federal officials will exercise wide-ranging discretion over which lawbreakers to target and which to ignore. Sessions' new marijuana policy uses that discretion in a way that is likely to cause far more harm than good.
While Sessions' new policy is a potentially dangerous development, it is possible that its impact will be constrained by strong political opposition. Marijuana legalization enjoys broad public support, recently reaching a new high of 64% in the Gallup poll. Last fall, the House of Representatives overwhelmingly passed bipartisan legislation that would reverse Sessions' new asset forfeiture policy (though so far the Senate has not acted on it). Colorado Republican Senator Corey Gardner (who represents one of the first states to legalize marijuana) claims that Sessions' reversal of the Obama marijuana policy violates a promise that Sessions made to Gardner during the confirmation process for attorney general. Gardner has threatened to hold up confirmation of Justice Department nominees in the Senate until Sessions retracts his new policy.
Given Sessions' long history as a hard-core drug warrior, no one should actually be surprised by his actions. This record was one of the reasons why I urged the Senate to "just say no" to Sessions' nomination last year. Gardner and fellow GOP Senator Rand Paul (who also claims to have been fooled by Sessions' supposed assurances on drug policy) should have voted against his confirmation, rather than trust that the uber-prohibitionist leopard would really change his spots. Still, Gardner and Paul can now partially make up for their mistake by promoting legislation that would curb federal marijuana prohibition, and ideally abolish it entirely, as advocated by a range of legislators in both parties, such as GOP Representative Tom Garrett and Democratic Senator Corey Booker.
Sessions' new policy is a setback for the cause of marijuana legalization, which has otherwise gained a lot of ground over the last few years. But the loss of this battle is far from the end of the war.
UPDATE: Cornell law professor Michael Dorf responds to this post to defend the Raich decision:
Perhaps [overruling Raich] makes sense to libertarians who wish to roll back the modern administrative state and who sought the judicial invalidation of Obamacare. But progressives and even most centrists think that the federal government needs the power to regulate health insurance markets, environmental pollution, and a host of other subjects that would be off-limits under the sort of restrictive view of the Commerce Clause advocated by libertarians and self-styled constitutional originalists like Justice Clarence Thomas. If overturning Raich means reversing the last eighty years of Commerce Clause jurisprudence, that would be throwing the baby out with the bathwater.
In my view, the Commerce Clause should be interpreted far more narrowly than it has been since the late 1930s. But, for reasons I explained more fully in this article, it is entirely possible to overrule Raich without overturning the last 80 years of Commerce Clause jurisprudence, and without eliminating federal power over nationwide insurance markets, transboundary pollution, and other similar issues. Such authority can exist even if Congress does not have the power to forbid the possession and in-state distribution of marijuana that has never crossed state lines or been sold in any interstate market. The marijuana at issue in Raich itself had never been sold even within the state where it was located. It makes no sense to stretch Congress' power to regulate interstate commerce to cover such a case.