Real Federalists Need to Step Up to Fight Jeff Sessions' War on Weed

The Attorney General's reversal on marijuana is out of step with states rights and public opinion.

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AG Jeff Sessions
CHINE NOUVELLE/SIPA/Newscom

You would think that the Justice Department has better things to do than to restart a federal war on marijuana or that it would want to stay away from interfering with the will of the people in the 29 states, plus the District of Columbia, that allow at least the medical use of marijuana. But you would be wrong. Thanks to Attorney General Jeff Sessions, we have now an emerging conflict between federal and state laws. That conflict should be resolved in favor of the states.

When he was a senator, Sessions once said during a Senate hearing, "Good people don't smoke marijuana." So nobody was surprised when a few weeks ago, he revoked the Cole memo—a document that provided guidance to federal prosecutors about targeting sales to children, money laundering and sales across state lines, as opposed to targeting the legal state sale of medical and recreational pot.

The memo was a poor alternative to revoking the Controlled Substances Act of 1970, which, the Cato Institute's Trevor Burrus writes, "defined marijuana as a Schedule 1 drug, meaning that it has no accepted medical uses and has a high potential for abuse." He adds, "Despite advances in our understanding of the medical benefits of marijuana, and despite 29 states having legalized medical marijuana in some form, federal law treats marijuana (as if it were) as dangerous as heroin." Note that cocaine, which has recognized medical uses, is a Schedule II drug.

The memo had the very positive effect of providing banks, users and dispensaries with confidence that they could operate legally without arrest. Unfortunately, Sessions' move could signal intent to use federal power to go after individuals and corporations in states that allow marijuana.

Though this is a legal move, it is ill-advised. Whatever one thinks of pot use, I can't imagine a good justification for going back to prosecuting the perpetrators of victimless crimes except that it fits nicely with the AG's outdated and paternalistic views.

It also goes against federalism, a belief that Republicans claim to hold, wherein states should be allowed to make decisions outside federal control on a variety of issues—such as legalizing marijuana. The Founding Fathers wrote a Constitution that distributed political power between the states and a national government. Police powers reside with the states, not at the federal level.

Our nation operates on consent of the governed. An Aug. 3 Quinnipiac University poll indicated that 94 percent of Americans support adult use of marijuana for medical purposes, if prescribed by a doctor. This poll indicated that Republican support for medical marijuana is at 90 percent. An Oct. 25Gallup Poll shows that a majority of Republicans support fully legalizing marijuana. At a time when Republicans are worried about following the will of the voters they'll face this November, they might want to note those lopsided numbers.

States should be allowed to make decisions outside federal control on a variety of issues and let the people, not the federal government, decide what they want.

Right now, many states respect the right of individuals to choose medical marijuana to treat stress, the nausea associated with cancer treatments and epilepsy. In eight states, the people have gone a step further and consented to adults using marijuana without a doctor's prescription. It's the essence of liberty to let people make their own decisions as long as they're not harming others.

This notion eludes Sessions. In 2014, Congress passed the Rohrabacher-Farr amendment, which prohibits the Justice Department from prosecuting medical marijuana businesses in states that allow it. Naturally, the AG wants Congress to pass an appropriations bill removing that language. Now's the time for the real federalists in Congress to stand up and stand by Rep. Dana Rohrabacher, (R-Calif.), and Sen. Patrick Leahy, (D-Vt.), who want this restraint on federal interference to continue.

Will the defenders of federalism stop a new war on drugs? The House and Senate are loaded with members who have parroted talking points and claimed that they're federalists; now we'll see whether their action matches up with their rhetoric. Trying to stop the Justice Department's new war on states that have consented to the use of marijuana is an act defending federalism and the will of the people.

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  1. “That conflict should be resolved in favor of the states.”

    By Congress.

    1. Or the president, who can order the DEA to reschedule marijuana, which Obama chose not to do.

    2. Or the Supreme Court, which voted 6-3 (Scalia in the majority) that a guy growing marijuana on his own property for his own consumption is “commerce among the several states”.

      1. Might want to take Trump’s dick out of your mouth, RP.

      2. Which is, of course, based on Wickard v. Filburn, arguably the worst Supreme Court decision of all time. Wickard determined that growing wheat on one’s own farm, no kernel every to leave the farm, was “interstate commerce”. The case has been applied to pretty much every congressional action that affects the states and violates the Constitution. The only two times it has not been extended (to my knowledge) involved firearms cases – the Printz decision (state officials can’t be forced to do background checks for the federales) and the “Gun Free School Zones Act”, which banned firearms within 1000 feet of any school on the theory that… well, COMMERCE CLAUSE and WICKARD.

        That said, Sessions is acting properly. It is Congress and the President who should change the law. Sessions’ job is to enforce the law – and the law says pot is illegal. (The law is wrong and unconstitutional – but it should be CHANGED not IGNORED.)

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  2. Beauregard Sessions would, like Goebbels, cheerfully kill his own kids if Leadership thought it was a good idea. In the 1920s and 30s, The Demon Rum would provide the pretext. In the 1950s he would have neutralized the threat because “Reefer Madness.” In all three cases, lawmakers proposed, and The Leader disposed. Richard Nixon silenced dissent by signing a law that guarantees no senator will suffer the humiliation of failing–in broadcast Senate hearings–sobriety tests that pot smokers and persons dosed with LSD can easily pass. Nixon and Hoover were clearly the Quaker leaders Beauregard was born to follow orders from.

  3. What “real” Federalists?

  4. I really don’t understand the silly outrage about this. There is a conflict between Federal and State laws here. The status quo of looking the other way was never going to be a long term solution, so tear off the band aid and get it over with.

    1. You gotta fetish for the feds?

      1. You must not be very bright if that was your takeaway.

      2. You seem like you totally misread my post, so for your benefit I will explain something smarter people were able to understand without an explanation

        The state/federal law disagreement doesn’t go away because public sentiment has changed. I would prefer that disagreement be clarified NOW so we can move forward without the ambiguity of federal laws still being in play, but ignored for the sake of convenience.

        If public sentiment is really on the side of legalization, which it seems to be, then we WANT a fight over this, so the FEDERAL LAWS CAN BE DONE AWAY WITH.

        I do not want the cudgel of unenforced laws hanging over Pot smokers, just because you are afraid of a fight.

        1. Thanks for the clarification. We agree.

    2. Bingo! Under the Constitution, federal law trumps state law to the contrary which is why no state has the power to legalize marijuana or anything else that’s illegal under federal law. If you want marijuana to be legal, then you need to persuade Congress and the President to pass and sign a bill into law that does that.

      1. Federal law trumps state law to the contrary IF the federal statute is constitutional. There being no grant of power given to Congress to prohibit weed, federal law does not trump state law.

        1. Totally agree, Libertymike, if it’s not in the constitution, it’s NOT legal!

      2. Setting aside the unconstitutionality of that law for a moment, it also gives the AG the power to reschedule marijuana (and other drugs). So it’s no excuse for Sessions. That’s also ignoring the fact that fully enforcing that law at the federal level is impossible.

      3. no state has the power to legalize marijuana

        It depends on what you mean by that. It is true that no state can make it legal under federal law. But states can remove state laws that criminalize drugs. In the case of criminal law, federal law doesn’t so much trump state law as coexist with state law. If states tried making laws forbidding the feds from enforcing their drug laws, then you’d be in a situation where there is a conflict in laws and federal law would be supreme (on the flawed premise that the feds have the power to criminalize drug possession or production that happens entirely within one state).

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  6. How does the actions of Sessions’ DoJ in the War on Weed stack up next to Holder’s first year?

    This seems harsher than anything session has said in an official capacity

    1. Don’t dodge or go relative.

      Of course, Holder was / is horrible. As was his Kenyan / Hawaiian boss.

      That doesn’t exculpate Sessions who is a public sector lifer. To paraphrase Beauregard, “good people don’t feed at the public trough for thirty years.”

      Good people also don’t say things like good people don’t do dope.

  7. Unfortunately, Sessions’ move could signal intent to use federal power to go after individuals and corporations in states that allow marijuana.

    Though this is a legal move, it is ill-advised.

    Anything the federal government does is illegal if it conflicts with the Constitution. Feel free to point out where in Article I, Section 8, or in any of the amendments to that document, the federal government is given the power to regulate marijuana or even drugs at all, (except alcohol, since the amendment repealing prohibition had the following caveat):

    Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

    1. How quaint.

      1. Quaint? You mean like prohibitionism?

  8. Betsy DeVos.

    http://getschooled.blog.myajc……education/

    1. Given that Common Core was an initiative of the National Governor’s Association and the Council of Chief State School Officers and not the Department of Education, in what sense can it be more dead or less dead than it was before?

      1. It was tied to receiving federal funds… did you read the speech? My interpretation of what she’s saying is advocating for not tying the hands of state/local education by making it a requirement to follow federal guidelines or test standards to receive federal funds, as the case has been with the last 2 administrations.

        State education depts. and local school boards can still choose to require common core or whatever standards they deem acceptable for their locality.

        1. Not since 2015 when the ESSA Act banned the DOE from “influence, incentivize, or coerce State adoption of the Common Core State Standards … or any other academic standards common to a significant number of States.”

          So as usual, the Right’s fever swamped conjured up an imaginary monster and DeVos is now taking credit for protecting them from Bunyip attacks.

    2. I read through the speech quickly, but in general, I couldn’t approve more of what I read. We’re a long way from abolishing the department of education, but certainly DeVos is pushing things in the right direction at the federal level.

      Thanks for sharing the link.

  9. Real Federalists Need

    Are there any real federalists? As opposed to situational federalists who are for it when (and only when) the states are on their side of an issue and the federal government is not?

    1. Thanks for adding nothing to the conversation.

      1. Thanks for adding nothing to the conversation.

        1. Truthfully Speaking, I could never write that Hugh adds nothing to the conversation.

  10. Eh, what? If the executive branch is doing something dumb, it’s because congress handed them a dumb law to enforce. The fight is in congress – do that, and Sessions can be moved to sit down and shut up. I understand the gut reaction – I took much the same stance initially because we do know that selective enforcement is one of the privileges of the executive branch. So, we are looking at the decrepit senate and its collection of odd and corrupt octegenarians, on balance. The best place to start for this fight? Term limits for congress: anyone with more than 10 years of service [house or senate combined] shall not be eligible to be seated regardless of election or court action. That lets house members move to the senate while at the same time prevent them from making DC a career: they will have to go back home, and we will have a place for fresh arguments.

  11. It’s simple, but I don’t expect a “cocktail-partying libertarian” to understand: Federalism applies to Gays and Guns, but NOT to Grass. There, now we’ve settled that…

  12. No! .
    What needs to occur is for Congress to change the law.
    Until that happens, it’s nice to see the Executive enforcing the laws duly passed by the Legislature.
    Or, perhaps you can go “judge shopping” and find a cretin such as Alsup to issue a Nationwide Injunction against enforcing Schedule-I?

    1. [AD-RtR/OS!|1.19.18 @ 9:47AM|#

      No! .
      What needs to occur is for Congress to change the law.
      Until that happens, it’s nice to see the Executive enforcing the laws duly passed by the Legislature.]

      Those “duly passed” laws you love so much are fucking unconstitutional, which means those laws are unlawful. Therefore “ignoring the law” is the most lawful thing you can do here. Get it? Don’t see the problem.

      [Or, perhaps you can go “judge shopping” and find a cretin such as Alsup to issue a Nationwide Injunction against enforcing Schedule-I?]

      LOL, why not? Whatever works, right? And why’s he a cretin? Because he’d get in the way of their precious war on drugs? Good! Fuck ’em. Whatever furthers liberty, man. Don’t mean shit to me.

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