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The Marijuana Exception to Federalism

If Jeff Sessions tries to shut down state-licensed cannabusinesses, he will betray his own principles.

Last week White House Press Secretary Sean Spicer predicted "greater enforcement" of the federal ban on marijuana in the eight states that have legalized the drug for recreational use. This week Attorney General Jeff Sessions, an old-fashioned drug warrior who thinks "good people don't smoke marijuana," seemed to confirm Spicer's warning, telling reporters, "We're going to look at it...and try to adopt responsible policies."

If those "responsible policies" involve legal action aimed at shutting down state-licensed marijuana businesses, they will be contrary to public opinion, President Trump's campaign promises, and Sessions' own avowed support for federalism. As most Republicans seem to recognize, attempts to force marijuana prohibition on states that have opted out of it are inconsistent with the decentralized system of government established by the Constitution.

According to a recent Quinnipiac University survey, 59 percent of Americans think marijuana "should be made legal in the United States," while 71 percent "oppose the government enforcing federal laws against marijuana in states that have already legalized medical or recreational marijuana." Among Republicans, only 35 percent favored legalization, but 55 percent opposed federal interference with it.

Last April a CBS News poll found even stronger Republican opposition to federal meddling. Asked if "laws regarding whether the use of marijuana is legal" should be "determined by the federal government" or "left to each individual state government to decide," 70 percent of Republicans said the latter, compared to 55 percent of Democrats (who as usual were more likely to favor legalization). These results suggest many conservatives, whatever they think of marijuana, take seriously their commitment to federalism, which Trump also claims to support.

At the Conservative Political Action Conference in 2015, Trump said he favored medical marijuana but had concerns about broader legalization, a decision he nevertheless said should be left to the states. "In terms of marijuana and legalization," he said at a 2015 rally in Nevada, "I think that should be a state issue, state by state."

Sessions, a former Alabama senator, also claims to believe in federalism. After the death of William Rehnquist in 2005, Sessions gave a floor speech in which he praised the chief justice for "reestablish[ing] a respect for state law and state sovereignty." Sessions noted that the federal government, under its authority to regulate interstate commerce, "has broad power, but there are limits to the reach of the Commerce Clause."

When it comes to marijuana, however, Sessions has little patience for those limits. "It does remain a violation of federal law to distribute marijuana throughout any place in the United States," he observed on Monday, "whether a state legalizes it or not."

In 2005 the Supreme Court upheld continued enforcement of the federal ban on marijuana in states that have legalized the drug. But the Court did so based on a very broad reading of the Commerce Clause—the sort of interpretation that usually irks conservative constitutionalists.

The case involved homegrown marijuana used by patients in states that recognize the plant as a medicine. "If Congress can regulate this under the Commerce Clause," observed dissenting Justice Clarence Thomas, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

In relying on an understanding of the Commerce Clause that lets Congress do pretty much whatever it wants, Sessions outdoes one of the most famous anti-marijuana crusaders in U.S. history. Harry Anslinger, head of the Federal Bureau of Narcotics from 1930 to 1962, pushed states to ban marijuana by claiming the plant turned people into rapists and murderers.

But even Anslinger did not go so far as to claim the federal government had the authority to impose marijuana prohibition on recalcitrant states. "There are no Federal laws on the growth or use of marijuana," The New York Times reported in 1931. "Mr. Anslinger said the government under the Constitution cannot dictate what may be grown within individual States."

© Copyright 2017 by Creators Syndicate Inc.

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  • NYer||

    Principles? The only principles these guys have is: RESPECT MY AUTHORITARIAN!

    It's time to start shifting focus to the Congressmen and Senators who are from legal marijuana states. Time to put their feet to the fire. Same with Paul and Lee.

  • Rockabilly||

    Your totalitarian agenda will be defeated and friends of freedom will rejoice!!

  • Rockabilly||

    You Can Pry My Weed Out of my Cold, Dead Hand

    https://www.youtube.com/watch?v=LCD_SqHmjQw

  • ||

    What principles is Jeff operating under? I mean, not just what he says his principles are, but what his actions demonstrate.

  • Pi Guy||

    As I noted in the AM Links a few minutes ago, the AG can only enforce the laws on the books. Or choose to ignore them.

    The issue here are the laws themselves. Elect more wisely your Congress members. Change the laws. Same goes for immigration.

    You can't selectively choose when and when not to enforce them.

  • Pi Guy||

    *arrogantly replies to self*

    I think that that's it in a nutshell: if the laws were restricted to punishing people for violations of the NAP then no one would care if cops were beating up criminals in alleys. Many would likely be in favor of that sort of street justice. Cops also can only enforce (legally) the laws already on the books.

    The problems start when they're beating up poor people for rolling bones with a bag of rock in your pocket. You want less violence? Start there. Change. The. Laws.

    Yes. Elections have consequences. Stop giving these idiots to positions of power, federally and locally.

  • ||

    You can't selectively choose when and when not to enforce them.

    Yes, you can.

  • marshaul||

    "You can't selectively choose when and when not to enforce them."

    Um, what? Not only can, but _should_.

    It may be true that prosecutorial discretion makes it easy to maintain bad law, but it's even more true that laws need to be interpreted on a case-by-case basis. Justice is not a one-size-fits-all solution.

  • Crusty Juggler - #2||

    You can't selectively choose when and when not to enforce them.

    It seems like a lot prosecutors do choose when and when not to enforce laws.

  • Hugh Akston||

    They sort of have to since they don't have the resources to implement the total police state that would be required to enforce them all. Why do lawn odor types have such trouble with that concept?

  • Crusty Juggler - #2||

    I understand law and order libertarians less than I understand Milo-tarians.

  • Hugh Akston||

    Seriously. At least Milo-tarians want something clear and comprehensible: to be carried around on a sedan chair by oiled-up black musclemen.

  • MikeP2||

    Xerxes?

  • Tionico||

    Jerk-ses

  • MikeP2||

    but they shouldn't choose. Prosecutorial discretion is the crap that leads to prosecutors pushing absurd plea bargains on people, threats of arbitrary prosecution, and bigotry in justice.

    Prosecutors have a job to do. Enforce the laws through the courts. period. Libertarians thrilled about prosecutors selectively choosing to not pursue pot convictions is terribly shortsighted, because it does nothing lasting beyond ensuing that our legal system is based not on written law, but the political winds.

  • Crusty Juggler - #2||

    but they shouldn't choose. Prosecutorial discretion is the crap that leads to prosecutors pushing absurd plea bargains on people, threats of arbitrary prosecution, and bigotry in justice.

    I do not disagree with that.

    Libertarians thrilled about prosecutors selectively choosing to not pursue pot convictions is terribly shortsighted, because it does nothing lasting beyond ensuing that our legal system is based not on written law, but the political winds.

    Do you think that libertarians are against repealing bad laws?

  • Cynical Asshole||

    You can't selectively choose when and when not to enforce them.

    Horseshit. Yes they can, in fact they have to because if they tried to enforce every law on the books the Justice Department's budget would have to be much larger than it already is. One would hope that punishing people who are in compliance with their state's laws would be pretty fucking far down the list of priorities.

  • Not a True MJG||

    They can and do, so they may as well busy themselves going after the better class of criminal.

  • wareagle||

    Somewhere in the distance, I hear the voice of the Dallas police chief after several officers were shot: you can't keep passing more and more laws and, by extension, creating more times when cops interact with citizens which, by further extension, means the greater likelihood of an interaction ending badly.

    All more laws do is make criminals of more people, then the lawmakers send out their armed agents to enforce said laws. To the extent drugs are an issue, it's more public health than criminality. The criminal nature links directly to the govt's second attempt at Prohibition which, surprisingly (said no sane person), has many of the same consequences as the first foray.

  • Cynical Asshole||

    If Jeff Sessions tries to shut down state-licensed cannabusinesses, he will betray his own principles.

    Not possible. As near as I can tell, Jeff Sessions has no principles to betray.

  • Cyto||

    Sure he does. This is a silly argument. His principles are that he is a committed drug Warrior. Therefore, drugs are bad end of analysis.

  • Rational Exuberance||

    In 2005 the Supreme Court upheld continued enforcement of the federal ban on marijuana in states that have legalized the drug

    The Federal Government arguably derives a right and duty to do so under several international agreements that the US entered into.

    I don't think this is how things should work, but the Trump administration probably is an pretty solid political and historical ground to argue for states rights in education but not drugs.

  • Calidissident||

    I've never bought this argument because it essentially allows the government to amend the Constitution through treaties. Which I don't think is valid. I think treaties ratified must comply with the Constitution to be valid and enforceable. Also, that isn't the reasoning the Supreme Court used in that case.

  • SomeGuy||

    Correct. If we enter a treaty saying we won't own X weapon that does not apply to the US citizen. The US founding documents and natural law trump all treats and make those restrictions void.

  • marshaul||

    Treaties are not (yet?) a free end-run around the constitution.

  • marshaul||

  • Tionico||

    international agreements and treaties that are not in accord with the Constitution are null and void, and do not bins\d us. READ your copy of the Constitution.

  • Raston Bot||

    OT

    http://www.thestate.com/news/p.....18509.html

    He wonders what would happen if a permit holder shoots the wrong person or if a bullet, intended for a suspect, ricochets during the adrenaline-packed confusion of an active shooter situation. "The last thing anybody wants is for a public school to become the O.K. Corral with everybody firing."

    right, at that point you only want the killer shooting. definitely don't want anyone else shooting at the killer because ricochet.

  • Cyto||

    these are valid concerns any time a weapon is drawn. No matter who is drawing the weapon. There is nothing about this scenario that is unique to concealed carry permit holders.

  • Cynical Asshole||

    "You've got a lot of young people who are growing up, who may or may not handle conflict well," said state Rep. Gilda Cobb-Hunter, D-Orangeburg. "We ought not make it so convenient for a weapon to be used in handling conflict. To have students armed, I believe, would lead to more instances of violence on campus."

    I thought at 18 people were considered adults? If they're too immature to be able to handle conflict resolution without turning to firearms, then perhaps they're too immature to be allowed to go to college (or live on their own) in the first place. Christ, what a load of DERP.

  • Raston Bot||

    also, you can't carry concealed in SC until 21.

  • Libertarian||

    Off topic, but as the Dow is up over 21,000 this morning, I have to post this for the tenth time:

    "If the question is when markets will recover, a first-pass answer is never." -- Paul Krugman

  • IceTrey||

    Pride comes before the fall.

  • EscherEnigma||

    This cynicism might be unwarranted, but when has a"States rights" discussion (in either direction) been principled rather then opportunistic?

    On every topic I can think of, people only being up States rights ("the states should handle it" or "this is too important to be handled by the states") when someone loses at the other level.

    So given that cynicism... Why *wouldn't you expect sessions to go after marijuana? His "principles" were just justifications.

  • Cynical Asshole||

    This cynicism might be unwarranted

    Cynicism is never unwarranted.

  • Raston Bot||

    OT

    Instapundit Glenn Reynolds on XPrize contest to "design a wearable solution that can keep women safe":

    DIDN'T COL. COLT AND JOHN MOSES BROWNING TAKE CARE OF THIS OVER A CENTURY AGO?

    https://pjmedia.com/instapundit/258345/

    No, that makes too much sense. Instead: "The winning team's solution will autonomously and inconspicuously trigger an emergency alert while transmitting information to a network of community responders, all within 90 seconds." This is idiotic design. 90 seconds? When seconds count, a message to a "network of community responders" will definitely go out within a minute-and-a-half. That's not security, it's a joke.

    the community responder can bring chalk and a camera to document the carnage.

  • EscherEnigma||

    A solution that people won't use isn't a solution.

    And hate to be the one to break it to you, but even as the number of privately-owned guns in America has gone up, the number of households that own a gun has gone down, and that's before you even talk about open carry/concealed carry numbers.

    Quite simply, most Americans don't want to carry a gun on them, even in places where there are few/no barriers to doing so.

  • Raston Bot||

    we're a private, paranoid bunch, it would not surprise me if that household survey under reported. for example, as "YES" responses declined, "REFUSED" responses increased. obviously the offset was not 1:1 but there's a worthy trend there too.

    http://www.norc.org/PDFs/GSS Reports/GSS_Trends in Gun Ownership_US_1972-2014.pdf

    still, at the very least 1/3rd American households have firearms. that's a significant minority.

  • Tionico||

    Not so. The industry, ever interested in market trends, has studied exactly this. The number of first time gun buyers in the past eight years has been huge, and unprecedented. Washington State has had an increase of well above 25% in the number of Mother May I Cards issued... more than ten percent of all adults in that state are able to carry per the law now. Never been that high, ever.

  • Cynical Asshole||

    How about something like this with something similar to the technology from a medical alert bracelet built in? Oh, and don't forget about a chastity belt.

    Yeah, pretty stupid, X-prize. They should stick to cool space stuff like the lunar x-prize and leave the virtue signaling to others.

  • Acosmist||

    But even Anslinger did not go so far as to claim the federal government had the authority to impose marijuana prohibition on recalcitrant states. "There are no Federal laws on the growth or use of marijuana," The New York Times reported in 1931. "Mr. Anslinger said the government under the Constitution cannot dictate what may be grown within individual States."

    Right, Wickard was 1942. Ship, sailed.

  • IceTrey||

    Once the rec taxes start flowing in Cali they will shut Sessions down like cops at a kegger.

  • bm0422||

    Jeff Sessions was a shill for Big Tobacco in the 80s and 90s. He is a joke.

  • Von||

    Interesting that the commerce clause gives them the authority to prohibit a substance from being possessed, used or sold. Can anyone tell me where the word prohibit is in the clause. I personally think they have confused the word regulate with restrict or prohibit.

    "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

    It was never to prohibit. It's to protect local markets from price fixing, market flooding, & to prevent monopolies. To give power to impose import taxes. Regulate, is defined as "make common, protect common, make consistent." SCOTUS false narrow minded ruling that compared the CSA to Wickard v. Filburn regarding the Agricultural Adjustment Act of 1938. Wheat was not prohibited, it was a restriction of how much you could sell. The farmer produced & sold his allowed share but produced extra for seed/livestock. they said he could only produce what the law said he could sell. No where in the ruling or the law, was wheat use, production & possession outright prohibited.

    The temporance movement tried to pass Alcohol prohibition multiple times. None of their Acts passed based on the ideology that government could not prohibit a substance without an amendment. No amendment was ever passed giving constitutional backing to the CSA. The very minute a state legalized marijuana, it's federal prohibition became unconstitutional.

  • Von||

    Jeff Sessions should worry more about the fact that he was just caught lying to congress during his confirmation hearing.
    #Sessons-Perjury

  • Tionico||

    good catch.

    Wonder if Sessions could be requested to produce the justification for his stand by referencing some part of the Constitution..... (hint: no, he can't cause it ain't in there....)

    If he can't then he's got a problem. He will have sworn an oath to uphold that Constitution.... but he'd then be tearing it down. That's perjury, an indictable activity.

  • Tionico||

    SCOTUS need to refisit Filburn, from about 1934 or so... the guy who grew wheat in his own private famil garden for his own family's use... and got busted because his farm produced the "maximum allowed" to put into the market, and what he grew for his own domestic use put him over the ";limit" he could produce. Their beef was that "that wheat, being used by his family, COULD have come from another state instead, and thus was regulatable under the Commerce Clause.

    What a load of bovine dung. Since then anything that could, would, did, did not, might have, or possibly could have, ever crossed any state line under any circumstances, was regulable by FedGov.

    NOT the Founders' intention.

  • para_dimz||

    So now its OK to follow Obama's lead on whether to enforce the law or not. Sessions is an administrator of the law.
    Jacob Sullum, point your complaint in the right direction or keep it at the coffee klatch. It does not belong here. We spent eight years having a fit over administrative picking and choosing which laws to enforce.
    Notice, I made NO defense for either side of the substantive arguments. But until you get process right substance belongs in think tanks and coffe klatches.

  • gaoxiaen||

    Shitcan that asshole already, though Russia disagrees.

  • Heartless Libertarian||

    It's only a matter of time before cannabis is legal throughout the US. The "Reefer Madness" people are dying off, and people who are 70 and under realize the government lied about cannabis from Day 1. Here in my state, we've had to common sense to,legalize cannabis for medical and recreational use, and it has worked out very, very well. The state gets tax dollars, which consumers gladly pay to get high-quality product, and people have jobs in the industry at the retail shops, in distribution and production.

    Anyone who thinks cannabis is a dangerous drug compared to alcohol or nicotine has not been paying attention over the past 70 years.

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