Reason.com

Free Minds & Free Markets

Federalists Can’t Support a Cannabis Crackdown

That includes the president, who said marijuana legalization "should be up to the states."

Before last Thursday, state-licensed marijuana merchants operated in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Now that Attorney General Jeff Sessions has clarified the Justice Department's policy regarding the cannabis industry, state-licensed marijuana merchants operate in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison.

Sessions calls this "a return to the rule of law." The description is dubious, not only because the situation for state-legal marijuana growers and distributors is fundamentally unchanged but also because the cannabis crackdown threatened by Sessions offends a basic principle of constitutional law: The federal government may not exercise powers it was never granted.

U.S. attorneys prosecute a minuscule percentage of marijuana violations, and they have very broad discretion to decide which ones are worth their time. Sessions rescinded Justice Department guidelines that said a violator's compliance with state law was one factor prosecutors should consider.

The reasoning, as explained in a 2013 memo from James Cole, then the deputy attorney general, was that state-regulated marijuana businesses are less likely to impinge on "federal enforcement priorities" such as stopping interstate smuggling and sales to minors. Cole did not tell U.S. attorneys to leave state-legal cannabusinesses alone, but since 2013 they generally have.

It's not clear whether Sessions' memo will change that. Sessions called the marijuana-specific guidelines "unnecessary" and said prosecutors should be guided by "the Department's well-established general principles." Last week the interim U.S. attorneys in Colorado and the Southern District of California, both Sessions appointees, said they would continue as before.

But given Sessions' well-known opposition to marijuana legalization, his memo was widely seen as portending more aggressive enforcement of the federal ban. That prospect provoked bipartisan criticism from state officials and members of Congress, uniting Democrats who support drug policy reform with Republicans who support federalism.

Sessions' boss counts himself in the latter group, and he has repeatedly applied the principle of state autonomy to marijuana. In July 2016, for instance, a TV reporter in Colorado Springs asked Donald Trump what he thought about using federal power to shut down the state-authorized cannabis industry in states such as Colorado.

"I wouldn't do that, no," Trump replied. "I'm a states person. I think it should be up to the states, absolutely."

That position is broadly popular. Last summer a Quinnipiac University poll found that 75 percent of Americans, including 59 percent of Republicans, opposed "enforcing federal laws against marijuana" in the 29 states that "have already legalized medical or recreational marijuana."

Refraining from such interference also happens to be what the Constitution requires. Under the 10th Amendment, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Unlike alcohol prohibition, the national marijuana ban was never authorized by a constitutional amendment. Its purported legitimacy instead relies on reading the power to regulate interstate commerce so broadly that it accommodates nearly anything Congress wants to do.

In 2005 the Supreme Court said the Commerce Clause covers every last speck of cannabis in the country, even if it never crosses state lines, down to the plant in a cancer patient's closet or the bag of buds in her nightstand. "If Congress can regulate this under the Commerce Clause," noted dissenting Justice Clarence Thomas, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Republican critics of Sessions' marijuana memo echo Thomas's concerns about an overreaching federal government. If they join forces with legalization-friendly Democrats, they can pass a bill that protects cannabusinesses from DOJ harassment and challenges the president to act on his avowed support for the 10th Amendment.

© Copyright 2018 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Telcontar the Wanderer||

    Running BoR diagnostic...

    1A: 75% and dropping
    2A: 50% and holding
    3A: ???
    4A: 35% and dropping
    5A: 40% and holding
    6A: 50% and holding
    7A: 50% and holding
    8A: 50% and dropping
    9A: disabled
    10A: disabled

  • BestUsedCarSales||

    So, like 15 soldiers have forcefully housed themselves in my two room apartment. So there you go.

  • Telcontar the Wanderer||

    "Forcefully", he says. Yes, I bet they're very forceful.

  • Jerryskids||

    "Forcefully" is the word that jumped out at you? I was more puzzled by the "two room apartment". I always assumed BUCS was a male.

  • Telcontar the Wanderer||

    BUCS transcended the concept of gender long before it was cool. Just as he transcended civil society's oppressively binary definitions of "forceful" and "consensual".

  • A Cynic's Guide to Zen||

    Lol. I bet you don't have Castle Doctrine and your mag size is limited to ten, isn't it?

  • gaoxiaen||

    That's okay. I have claymores rigged at the doors and windows. Who cares about some shitty flash-bang?
    I'd better clarify that with /sarc.

  • A Cynic's Guide to Zen||

    Cannabusiness

    Get it? Because Cannabis and Business are so close in phonetics.

  • Shockerengr||

    Not to be confused with the Canna farms

  • Rev. Arthur L. Kirkland||

    Being a drug warrior may be the most reliable indicator that a person is a jerk.

    Fortunately, each cranky, old movement conservative is destined to improve our society with his next act of civic contribution, which will be recounted in an obituary when he takes his stale, prudish authoritarianism to the grave and is replaced by a younger, more tolerant, better member of our electorate.

    Until then . . . carry on, clingers.

  • I am the 0.000000013%||

    That is an excellent opening paragraph. Pithy, informative, and entertaining. Thank you!

  • ||

    Not to mention redundant...

  • EscherEnigma||

    President Trump doesn't "support federalism". Thinking he does is just wishful thinking. I'm not sure what his guiding principle is (or if he has one), but it sure ain't federalism.

  • GeoffB1972||

    I think this aligns nicely with Trump's thinking on DACA. This is for Congress to deal with, not him, but if they send him something to sign he'll probably sign it and issue a press release about how great he was for doing so. If you don't like the law, write your Congresscritter and ask them to sponsor and push through a change.

  • seahorsedan||

    I am convinced the establishment corporate MSM Globalists and currant Democrat party want to surrender our U.S. sovereignty for reasons I absolutely oppose.
    I hope that anyone who favors Globalism over U.S. sovereignty will run on that platform and patriots that run on our nations right of sovereign self determination will make that issue perfectly clear. We the people need that debate to be open and public from "the horses mouth", not MSM's Madison Avenue spin.
    The establishment Globalist MSM Madison Avenue spin has indoctrinated the mindless semi comatose faction of he Democrat party about Russian interference and empty threats about a Russian takeover of our sovereign democratic republic while simultaneously peddling Globalism where the same easily manipulated semi comatose faction of he Democrat party vote to surrender our hard won sovereign democratic republic to the OAS, EU, or NATO with the Hague or Nuremberg's approval of course without firing a shot.. I hope to revive the "spirit of 76" but look forward to an open honest debate on the subject in 2018 and more so in the 2020 presidential campaigns.

  • Nominalis||

    They may not be able to support a cannabis crackdown but they can convince themselves that they're sending the right message to "the children". Because isn't that what prohibitionists are all about, messaging children? Their crusade is largely based on their obsession with sending messages to children. If anyone but an anti-drug warrior tried to message children so much they'd be hauled-in for questioning pretty darned fast.

  • Kenrm||

    Then States should be allowed to sue the adjacent States that legalize it for the added expense of additional policing forces required to prohibit those drugs from crossing the State border. Or...sue the adjacent State for not policing its residents from bringing the drug to other STATES.

  • NYer||

    "Then States should be allowed to sue the adjacent States that legalize it for the added expense of additional policing"

    To my understanding they can with the permission of the Supreme Court. Suing their neighboring state is terrible idea though. Any added expenses of additional policing would be mostly due to the state prohibiting the drug. Rather than wasting resources on arresting and/or prosecuting people for cannabis use or possession, Pro-prohibition states would be better off simply fining the person and confiscating their cannabis. They could also work with their neighboring state and the feds to prevent interstate trafficking

    Suing their neighboring state would just be petty and is terrible idea from a public policy stand point. Kansas suing Colorado over Cannabis, then New York suing Vermont or Virginia over their gun laws. Terrible idea.

  • Lester224||

    ^^Like

  • Hank Phillips||

    That was precisely the argument Comstock hillbilly and Dixiecrat states used to force the 18th Amendment, Volstead Act, Harrison Act and 5 light beer felony law onto us all. To this day huge beer warehouses seek legislation to make surrounding counties dry so their logistics acquire a monopoly stranglehold on the region.

  • Kenrm||

    Easy solution, team the IRS and DEA to confiscate any assets of the drug suppliers and treat it like they do with a Mafia run business. Kill the business via confiscation of all assets and thru IRS for using drug money to pay taxes. The FEDS will be able to eliminate the $20 trillion deficit in no time.

  • Hank Phillips||

    The US Government is a Mafia run business. The last times that tactic was put into effect, owners of money withdrew their holdings in 1929, 1933, 1987, 2007 and depressions disguised by inflation followed promptly. Republican prohibitionists have a serious learning disorder.

  • ohdelilah||

    Don't blame this on Republicans. Democrats, including our ganja-king Obama, have also supported prohibition and its spin-off war through the decades. Americans who believe the lies about the drug war, either its stated goals or its much-lamented "failure," are the ones with the serious disorder. It's called "willful ignorance."

  • Lester224||

    Sessions is a Republican. I blame Sessions, but not all Republicans.

  • Hank Phillips||

    God's Own Prohibitionists' Gee Oh Pee platform, under Combatting Drug Abuse, whines:
    "The progress made over the last three decades against drug abuse is eroding, whether for cultural reasons or for lack of national leadership. In many jurisdictions, marijuana is virtually legalized despite its illegality under federal law. " The other looters wanted to ban electricity, and the words "legalize" and "deregulate" appear nowhere in the commie Dem platform either. But the vote I cast is a law-changing spoiler vote for what I want: no prohibition of plan leaves or electric power plants. Four million such votes now swing some 93 electoral votes. That's clout!

  • ||

    Nixon, a Republican, started it all. So yeah, we can blame Republicans.

  • ohdelilah||

    Civil asset forfeiture? What a concept; I wonder why no one's thought of it before. How about we just tell our kids to just say no while we're at it? Or, legalize the damn drugs. You want to increase tax revenue? Collect import fees, business license fees, income taxes, and sales taxes on a multi-billion dollar industry that isn't going away as long as there are people and drugs on the same planet. AND save the $40 billion + per year we're currently spending on a war that can't be won. AND the cost of incarcerating a quarter of a million drug offenders. AND the costs of social services to families when the bread winner is imprisoned of loses their jobs because of drug felonies. The downside (and there's always a downside) would be that individual freedom would have to be restored in the once-proud "Land of the Free." And nothing has red-blooded Americans (Home of the Brave! Yay!) cowering in fear quite like the specter of Freedom.

  • VinniUSMC||

    Legalize. 'Nuff said.

  • Mark of the Beach||

    In the 2005 case Gonzalez v. Raich, Thomas was joined in dissent by Rhenquist and O'Connor, with Scalia and Kennedy joining the 4 liberal Justices in the 6-3 defeat for States Rights. Scalia was happy to embrace the liberal reasoning behind Wickard v. Filburn, which holds that the power to regulate interstate commerce must naturally extend to non-commercial, intrastate activity, therefore prohibiting one from growing her own medical marijuana, or growing his own grain in order to then feed his own chickens -- I'm not making this up. Like Sessions, Scalia was also willing to sacrifice the ideals of federalism so children got the right massage about the evils of the reefer. Roy Moore, another creep from Alabama, always struck me as one of those so-called conservatives just in it for massaging our children.

  • BambiB||

    Wickard was the case that first woke me to the fact that the Supreme Court is often Supreme Bullshit. The court's rationale in Wickard was that growing wheat on one's own land for use solely on the farm, not one grain ever to leave the property, was "interstate commerce" because it meant that the farmer would not have to buy grain, and that would affect the price of grain everywhere by reducing demand.

    Of course, that rationale can apply to almost anything. Wickard is pretty much standard boilerplate for any unconstitutional act of congress.

    From what I understand, it was actually FDR who gave us Wickard. His threat of court-packing was the reason behind the Supremes' temporary insanity.

  • seahorsedan||

    Try this on: Our benign duly elected president makes generous kind offer. Look at the bright side: If congress removes Mary Jane from the schedule 1 narcotics list Mexico may demand a wall and build one for us. Maybe under employed liberal youngsters will suddenly discover a latent affinity for a career in agriculture. If you could grow buck a pound grapes or $50 for an eighth of an oz. 'ganja' what would you do? It looks like a perfect compromise to cancel DACA 100%, deport illegal aliens, limit immigration and build the wall in exchange to allow states to grow, sell and tax pot. A 'uge win for everyone. Let's make a deal.

  • Hank Phillips||

    Your use of the 1932 Herbert Hoover voter redefinition of "liberal" to mean prohibition-repeal advocate identifies you as a member of God's Own Prohibitionist party. The website you are looking for is teaparty.org

  • Hank Phillips||

    With the God's Own Prohibitionists and Econazis of Altruria splitting 96.72% of the vote count, the Commerce Clause can as easily reinstate the entire 18th Amendment and 1873 Comstock law as establish Detention Camps for esxterminating the genetically selfish. Now would be a good time to remove the creepy Vigilante Death Sentence plank from the LP platform and plunk for the Atlas Shrugged Amendment in its stead: "And Congress shall make no laws restricting or abridging the freedom of production and trade." Sometimes you have to get a mule's attention before teaching it anything.

  • VinniUSMC||

    That's strange. The words are English, but the content is gibberish. Can we get a translator in here?

  • ohdelilah||

    "Can't support"? Seriously? I would think that anyone who can support federal prohibition of drugs like meth, heroin, and cocaine can just as easily support federal prohibition of cannabis. It's the same thing.

  • ||

    Are you a mule?

  • Robert Crim||

    The 2005 S.Ct. ruling mentioned cited with approval the Court's 1942 Wickard v. Filburn decision, perhaps one of the most fascistic rulings ever handed down by the Court. This ruling, which extended federal wheat controls onto a local farmer who grew wheat solely for use by his own animals, was made in the wake of the Court's 1937 "roll-over-and-play-dead" attitude toward economic and other neo-Nazi legislation that ultimately resulted in the Court's acquiescence to concentration camps for Japanese Americans because of their race.

    I'm no fan of legalizing marijuana, but libertarian lawyers given the opportunity should attack Wickard at every opportunity, and not just by denouncing it as precedent but by denouncing it as neo-Nazism. The Court in the future might be much more hesitant to so approve of this decision if its members knew that relying on it would get them likened to Adolf Hitler or Hermann Goering -- a perfectly fair comparison given where this line of decisions ended up.

    One possibility for attack that might be explored is to point out that this decision, as well as the Kuribayashi ruling, was made under the exigencies of war, and not just any war but the war of all wars -- the war against Hitler. I submit the justices would look like fools by relying on a precedent that was rendered in support of the very economic theory this country actually was warring against at the time. And, anything to get this evil precedent overturned ought to be tried.

  • Shoreline1||

    I don't feel it should be left up to the states, except to protect a citizen's right to use it. It's overbearing to suggest that the government should prohibit anything of this nature, and the affect of current policy is tyranny. The founding principle of America is freedom, and not the bullshit the government is inflicting upon us.

  • RPGuy16||

    Obama had 8 years to remove marijuana from Schedule I (including a period with a filibuster-proof majority in Congress) but chose not to act. Trump could act today to do the right thing but chooses not to.It doesn't make sense to rely on the good will of the Attorney General as the foundation for legalization. But no one wants to spend their own political capital to do the right thing.

  • AD-RtR/OS!||

    If it took a Constitutional Amendment to ban the manufacture, sale, and use of alcoholic beverages, it should have taken a similar measure for Congress to do the same to drugs.......all drugs.
    Where is the Constitutional justification for Schedule One?

  • Hank Phillips||

    Visit the Shaffer Drug Libary for the sad story of the Harrison Act and how it turned physicians into government remoras and snitches.

  • atheistrepublican||

    Let's hope Sessions aggressively enforces the Federal drug laws. No better way to get them repealed than aggressive enforcement.

  • Hank Phillips||

    U.S. Grant said that and signed the Comstock law. Herbert Hoover repeated that and was out on his ass the next election, with the nation a slum.

  • ||

    You mean like the aggressive enforcement of the past 50 years?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online