The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday, Attorney General Jeff Sessions announced that he was rescinding all of the Obama administration's enforcement guidance that had foresworn enforcement of the Controlled Substances Act against marijuana that was legal under state law.
There has been plenty of criticism of Sessions's new position, including from my co-bloggers Ilya and Jonathan here. One major line I've seen in defense of Sessions's action is that his position is truer to the rule of law: Maybe Congress should decentralize marijuana policy, the argument goes, but until it does the executive branch should be enforcing the law, not suspending or dispensing with ones it thinks are unwise.
As a general principle, I think there is a lot to that. But in this case, I do not think the rule of law requires the renewed enforcement of the Controlled Substances Act, and if anything requires the opposite. My reasons are detailed in my three-year-old paper on marijuana federalism, State Regulation and the Necessary and Proper Clause, but there are two key points:
First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. Congress's enumerated powers are to regulate interstate commerce, and to pass laws necessary and proper to carrying that interstate regulation into effect.
This means that Congress can ban the interstate drug trade, and it can also police in-state drugs that would spill over into interstate commerce. But that does not mean all in-state drugs. It depends on the circumstances in each state, and it especially depends on how each state regulates the drug and polices possible spillovers. The Supreme Court dismissed the role of states in a footnote in Gonzales v. Raich, but it was wrong to do so.
Second, the attorney general does not have to and should not adopt the Supreme Court's reasoning in Raich as federal law enforcement policy. Members of the executive branch have their own obligation to interpret the Constitution, and if a federal law is unconstitutional in part then the executive branch, no less than the courts, should say so. It is the Constitution, not the Court, that is the ultimate rule of law in our system.
So to be most consistent with the rule of law, what Attorney General Sessions should have done would have been to revise the Obama administration's enforcement guidance so that it was based on the Constitution—on the limits of federal power to reach wholly in-state activity—rather than on sheer policy discretion.
I understand the instinct to be wary of excessive executive discretion in law enforcement. But we should not forget that the Constitution is one of the laws that the executive enforces—and hopefully, above all others.