At his confirmation hearing yesterday, William Barr, Donald Trump's nominee to replace Jeff Sessions as attorney general, said he will not target state-licensed marijuana businesses, although he called the current conflict between federal prohibition and state legalization "untenable." In response to questioning by Sen. Cory Booker (D-N.J.), Barr said he would prefer a uniformly enforced federal ban on marijuana but recognizes that the Obama administration's accommodation of the newly legal cannabis industry, as reflected in a 2013 memo from then-Deputy Attorney General James Cole, created expectations on which investors have reasonably relied.
Although Sessions officially rescinded the Cole memo a year ago, U.S. attorneys have shown little enthusiasm for cracking down on marijuana suppliers who comply with state law, and Barr said he is not interested in doing that either. "I'm not going to go after companies that have relied on the Cole memorandum," Barr said. "My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole memorandum. Investments have been made, so there [has] been reliance on it. I don't think it's appropriate to upset those interests."
Barr, an old-fashioned drug warrior, made it clear that he is not a fan of legalization. "We either should have a federal law that prohibits marijuana everywhere, which I would support myself, because I think it's a mistake to back off from marijuana," he said, or "if we want a federal approach, if we want states to have their own laws, let's get there, and let's get there the right way." In response to a subsequent question from Sen. Thom Tillis (R-N.C.), Barr clarified that he meant Congress should change federal law if it wants the states free to set their own marijuana policies.
Although Barr's remarks will be reassuring to all those cannabis investors, it is worth reflecting on his position that federalism is something Congress deigns to grant the states, as opposed to something the Constitution requires. Today marks 100 years since the ratification of the 18th Amendment, the result of an arduous process that prohibitionists recognized as the only legal way to accomplish their goal, because otherwise the federal government would not have had the authority to ban the manufacture and sale of alcoholic beverages. After the 18th Amendment was repealed in 1933, Congress no longer had that authority (except with respect to interstate trafficking in violation of state law, which the 21st amendment specifically addressed). There is no logical reason why these observations about the limits of federal power would apply to alcohol but not marijuana.
In fact, Harry Anslinger, the ardent pot prohibitionist who ran the Federal Bureau of Narcotics (FBN) from 1930 to 1962, conceded that Congress did not have the constitutional authority to ban marijuana. In 1931, as Anslinger was preparing a model marijuana prohibition law for the states, The New York Times noted that "there are no Federal laws on the growth or use of marijuana, the plant being grown so easily that there is almost no interstate commerce in it." The Times reported that Anslinger "said the government under the Constitution cannot dictate what may be grown within individual States." As late as 1937, the Times was saying the FBN "has admitted that its hands are tied by the fact that the marihuana weed is indigenous to so many States that its distribution is an intrastate problem."
Later that year, when Congress passed the law that effectively banned marijuana at the federal level, it was framed as an exercise of the tax power, like the Harrison Narcotics Tax Act of 1914 (or, to take a more recent example, the individual insurance mandate imposed by the Patient Protection and Affordable Care Act of 2010). That's the sort of maneuver Congress uses to accomplish indirectly what it lacks the authority to do directly. But when Congress passed the Controlled Substances Act of 1970, which includes a direct ban on marijuana, it abandoned any pretense of revenue raising. By then, thanks to a series of Supreme Court rulings that began a few years after the Marihuana Tax Act was passed, legislators took it for granted that they could do almost anything they wanted and justify it as an exercise of the power to regulate interstate commerce.
Those rulings culminated in Gonzales v. Raich, the 2005 decision in which the Court said that power somehow reaches a bag of marijuana in a cancer patient's nightstand, even if the dried plant matter never crossed state lines, even if she grew it herself, and even if state law allowed her to do so. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas observed in his dissent, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."
Even Harry Anslinger understood what the Supreme Court now routinely denies: that interstate commerce does not include conduct that is not interstate or not commercial, let alone conduct that is neither. Barr complained that state marijuana legalization is "almost like a back-door nullification of federal law." But that is a bad thing only if the federal law is legitimate, which marijuana prohibition is not.