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Jeff Sessions Escalates the Federal War on Marijuana - and his Assault on Federalism

The attorney general's reversal of an Obama policy limiting prosecution of marijuana businesses in states that have legalized marijuana is a limited, but potentially dangerous step.

A cannabis plant.A cannabis plant.

Earlier today, Attorney General Jeff Sessions announced that he will rescind an Obama-era Justice Department policy limiting federal prosecution of marijuana users and distributers in states that have legalized cannabis. For reasons well-summarized by co-blogger Jonathan Adler, this is a bad decision on both policy and legal grounds.

In the short run, the impact may be relatively minor. The Obama policy offered far from complete protection to cannabis businesses. To the contrary, as I explained back when the policy was first instituted in 2013, it included numerous exceptions that in practice allowed federal prosecutors to go after almost any marijuana producer they had a strong desire to target. Because federal law enforcement resources are limited and the federal government often relies heavily on state and local cooperation in drug cases, it is unlikely that the Justice Department will be able to target more than a small fraction of the new legal cannabis industry.

Nonetheless, the Sessions policy reversal is potentially very important. At the very least, it signals a new, more aggressive federal posture towards states that have legalized marijuana. The Attorney General's new stance is a signal to federal prosecutors and law enforcement officials that the Justice Department supports stronger efforts to undercut legalized marijuana markets in the states. If Sessions did not intend to send such a signal, there would have been little point to his action.

And while the feds may not have the resources to go after the vast majority of marijuana sellers, even targeting a few could have a major chilling effect. Businesses will be reluctant to operate in the open if there is even a modest chance that the feds will target them, subjecting the owners to the risk of losing their investment and facing prison time. That may be even more true for investors and financial institutions that work with this newly legal industry.

Since 2012, eight states have legalized recreational marijuana, including such major ones as California (where legalization has just gone into effect), Colorado, and Massachusetts. Legal businesses involved in selling marijuana may be reluctant to do so if they face a potential federal crackdown - even one that is unlikely to directly impact the majority of them. This in turn, could drive much of the marijuana industry back in to the black market, where it would once again promote violence and organized crime of the sort that have been a major product of the War on Drugs. Jeff Sessions likes to pose as a great scourge of criminal drug gangs, such as MS-13. But such gangs are likely to be among the major beneficiaries of his efforts to renew the federal war on marijuana.

Sessions' new marijuana policy should be considered in conjunction with his expansion of asset forfeiture, policies that allow the government to confiscate property that may have been used in the commission of a crime, even if the owner has never been convicted or even charged with any offense. If the feds target newly established marijuana businesses in states that have legalized pot, they can use civil asset forfeiture to seize the owners' property, even if those owners are not convicted of a crime. The prospect of such treatment could potentially be a major deterrent to participation in the marijuana industry.

Like his asset forfeiture policy and his attack on sanctuary cities, Sessions' effort to target marijuana in states that have legalized it is an assault on constitutional federalism, as well as terrible policy. It undermines state autonomy on a policy issue where there is little, if any justification for federally imposed uniformity. Admittedly, as Damon Root points out, the policy is consistent with a series of dubious Supreme Court decisions. The most notable is Gonzales v. Raich (2005), which held that Congress's power to regulate interstate commerce allows it to ban the possession of medical marijuana that had never been sold in any market or crossed state lines. Raich is a terrible decision that principled conservatives - and others who care about enforcing constitutional limits on government power - should be trying to overrule. They should not be exploiting it to impose federal prohibition on unwilling states.

Some defenders of the Sessions policy will no doubt claim that he is just trying to "enforce the law." But in a world where we have vastly more federal law than any administration can even come close to enforcing, it is inevitable that federal officials will exercise wide-ranging discretion over which lawbreakers to target and which to ignore. Sessions' new marijuana policy uses that discretion in a way that is likely to cause far more harm than good.

While Sessions' new policy is a potentially dangerous development, it is possible that its impact will be constrained by strong political opposition. Marijuana legalization enjoys broad public support, recently reaching a new high of 64% in the Gallup poll. Last fall, the House of Representatives overwhelmingly passed bipartisan legislation that would reverse Sessions' new asset forfeiture policy (though so far the Senate has not acted on it). Colorado Republican Senator Corey Gardner (who represents one of the first states to legalize marijuana) claims that Sessions' reversal of the Obama marijuana policy violates a promise that Sessions made to Gardner during the confirmation process for attorney general. Gardner has threatened to hold up confirmation of Justice Department nominees in the Senate until Sessions retracts his new policy.

Given Sessions' long history as a hard-core drug warrior, no one should actually be surprised by his actions. This record was one of the reasons why I urged the Senate to "just say no" to Sessions' nomination last year. Gardner and fellow GOP Senator Rand Paul (who also claims to have been fooled by Sessions' supposed assurances on drug policy) should have voted against his confirmation, rather than trust that the uber-prohibitionist leopard would really change his spots. Still, Gardner and Paul can now partially make up for their mistake by promoting legislation that would curb federal marijuana prohibition, and ideally abolish it entirely, as advocated by a range of legislators in both parties, such as GOP Representative Tom Garrett and Democratic Senator Corey Booker.

Sessions' new policy is a setback for the cause of marijuana legalization, which has otherwise gained a lot of ground over the last few years. But the loss of this battle is far from the end of the war.

UPDATE: Cornell law professor Michael Dorf responds to this post to defend the Raich decision:

Perhaps [overruling Raich] makes sense to libertarians who wish to roll back the modern administrative state and who sought the judicial invalidation of Obamacare. But progressives and even most centrists think that the federal government needs the power to regulate health insurance markets, environmental pollution, and a host of other subjects that would be off-limits under the sort of restrictive view of the Commerce Clause advocated by libertarians and self-styled constitutional originalists like Justice Clarence Thomas. If overturning Raich means reversing the last eighty years of Commerce Clause jurisprudence, that would be throwing the baby out with the bathwater.

In my view, the Commerce Clause should be interpreted far more narrowly than it has been since the late 1930s. But, for reasons I explained more fully in this article, it is entirely possible to overrule Raich without overturning the last 80 years of Commerce Clause jurisprudence, and without eliminating federal power over nationwide insurance markets, transboundary pollution, and other similar issues. Such authority can exist even if Congress does not have the power to forbid the possession and in-state distribution of marijuana that has never crossed state lines or been sold in any interstate market. The marijuana at issue in Raich itself had never been sold even within the state where it was located. It makes no sense to stretch Congress' power to regulate interstate commerce to cover such a case.

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  • Flight-ER-Doc||

    Sessions should be given two options by Congress, resign, or be impeached. He either lied during his confirmation hearings, or he has been negligent in his duties....

    And Congress should get off it's ass and repeal all drug control laws: They don't work, they have only made things worse, and Corey Gardner should quit pointing fingers at Sessions when Congress is responsible for making the laws.

  • SimonP||

    It's incredible to me that, having clearly lied to Congress in his confirmation hearings, no one currently is calling for his head. Just because congressional Republicans haven't made a stink about it. The Republican base really is just a bunch of numbnuts waiting to be told when and how high to jump.

    Once we're through this dumpster fire of a presidency, there's going to be a real coming to terms with the incredible mendacity and corruption of the Trump administration.

  • OtisAH||

    Don't be so certain. If "Will you take impeachment/prosecution of members of the previous administration off the table" becomes the same media litmus test for Dems like it did in 2008, it should be no surprise.

  • JesseAz||

    "clearly lied." Many took the context of Al's question to be one in regards to Trump's campaign. Only when you isolate the sole clause of "any contacts" does Sessions clearly lie. Al was clearly talking about Sessions' duties as pertaining to the Trump Campaign when he asked about Foreign Contacts. Al is in the Senate, he knows Jeff Sessions (as a member of the senate) would have foreign contacts as part of his Senatorial duties. Misconstruing this as you have is just silly.

  • TwelveInchPianist||

    Fortunately for Sessions, Claire McCaskill illustrated how easy it was to make such a mistake.

  • Brett Bellmore||

    As I recall, it's been confirmed that he had been specifically told that was the context of the question, by the FBI agent helping him with the paperwork.

    But there must be some heavy money going into search engine placement, because there's no mention of that until you're into at least the second page of results on Google.

  • Careless||

    *biting tongue*

  • SimonP||

    "clearly lied." Many took the context of Al's question to be one in regards to Trump's campaign. Only when you isolate the sole clause of "any contacts" does Sessions clearly lie.

    Clinton was impeached for less.

    Al was clearly talking about Sessions' duties as pertaining to the Trump Campaign when he asked about Foreign Contacts.

    I mean, even if we were to take you seriously on this narrow construction of the question Sessions was answering, and we charitably assume that Sessions had absolutely no reason to be clear, in his response, that he wasn't including senatorial-duty meetings within the scope of his response (think about what you would do in that situation, if your primary interest was in being fully truthful and forthright, rather than just being confirmed as expeditiously as possible), we already know enough about the Mueller investigation to know that it's highly unlikely Sessions (as a member of the campaign's foreign policy team) was unaware of and uninvolved in various campaign official's dealings with the Russians.

    So, yeah. You can lie now and be contradicted later, or you can just keep your mouth shut. Your choice.

  • bernard11||

    You're welcome.

    Now stop bothering us and go back to work.

    Time is money, and you are wasting it by posting here.

  • Perseus`||

    The only officials who should be sanctioned are the members of Congress who voted to confirm Sessions based on an outrageous expectation that he would not enforce a law for which Congress is completely responsible (and which they have not taken any serious steps to modify/repeal).

  • Brett Bellmore||

    I'm not going to defend Sessions for enforcing a law that's obviously unconstitutional. (Even if the Supreme court was suborned into saying the opposite.)

    But those who say Congress should repeal the federal drug laws are none the less right. That, not under-enforcement, is the proper thing to do when confronted with bad, even unconstitutional, laws.

    They should also eliminate (Pre-conviction!) civil forfeiture at the federal level. Actually, I think they could probably do it at the state level, too, under the 14th amendment.

  • VinniUSMC||

    Yeah, a policy of non-enforcement of a law, even a bad law, is nothing more than a bandaid on a broken system. Focus on the root cause, and remove the need for non-enforcement policies, which as we see here, can be changed on a whim.

  • NToJ||

    While there is a certain curb appeal to using this as an opportunity to force Congress to act, the necessity of going this way ignores desuetude. There are hundreds, thousands of laws that died peaceful deaths from non-use. And since Republicans control Congress and support the criminalization of marijuana, how does it solve the problem to have them enforce laws they won't permit the repeal of?

  • jph12||

    I doubt that any of those laws that died peaceful deaths had major implications for a billion dollar industry and, even more importantly, the banks that could serve them but are not. Until marijuana is decriminalized at the federal level, and banks are not subjected to potential money laundering (among other) charges for dealing with the marijuana industry, the industry is still going to be severely hampered. And memos or policies of non-enforcement are unlikely to change that.

  • SimonP||

    I'm not going to defend Sessions for enforcing a law that's obviously unconstitutional. [Proceeds to deflect blame from Sessions for enforcing an "obviously unconstitutional" law.]

    What's interesting, to me, about this whole "just doing his job" bit is that few of the same libertards making this point seem to be aware that the Trump presidency has been all about slow-walking his executive-branch constitutional responsibilities, when it comes to enforcing the law. We still have an Environment Protection Act, a Clean Air Act, a Clean Water Act, a Civil Rights Act, and on and on. But the Trump agenda has been to defund and dismantle the agencies charged with enforcing these laws, to the accolades of libertards everywhere. So why, on this issue of all issues, the cause celebre of the internet-libertarian, is anyone giving Sessions a pass for not doing the same thing that he's doing on civil rights, or the rest of the Trump administration on virtually everything else?

    Libertards like you really will defend anything Trump does. Just admit it. You have no moral compass of your own.

  • Bob from Ohio||

    A "moral compass" who uses kindergarten insults.

  • SimonP||

    I know my audience.

  • jph12||

    But not much else.

  • SimonP||

    I'm a genius. A very stable one.

  • Careless||

    In the sense that your audience is people who appreciate your posts (which is probably just AK), I suppose so

  • Rev. Arthur L. Kirkland||

    The audience here -- a white, male, movement conservative blog -- appears to consist of (1) white, male. right-wing lawyers, (2) white, male, right-wing defense contractors and military personnel, (3) a smattering of right-wingers in unconvincing libertarian drag, and (4) a few genuine libertarians wondering what in the heck happened to reason.com.

  • swampwiz||

    I'm actually generally progressive, believing that there are a lot of situations in which government involvement is best, and also that the onslaught of the robot economy is going to force us to become a lot more socialistic. I like Reason because I am still libertarianish on a few issues.

  • SimonP||

    You realize, don't you, that by responding to my comment, you're admitting you're reading them? Or is that a level of self-awareness that you haven't quite developed?

  • JesseAz||

    This may shock you Simon, but Trump is running those agencies as he sees fit. He is executing those laws as he sees fit. He sees Obama's usage of the agencies, a regulatory body by fiat not of Congress, as an incorrect usage of the laws that created the agencies. Just because Trump doesn't agree with you doesn't mean he isn't having those agencies still do work. They've all released multiple reports since Trump came into office, so there goes your implication that the agencies are gutted and not doing anything.

    Your arguments tend to the childish side.

  • Sarcastr0||

    You are literally the only person I've seen arguing Trump is doing right by administrative agencies.

    I've seen people saying he's killing them and good riddance because they're unconstitutional.
    But one but you thinks the EPA is protecting the environment better than ever, or State's diplomacy is as robust as ever.

  • SimonP||

    This may shock you Simon, but Trump is running those agencies as he sees fit.

    Which, of course, is not his constitutional prerogative. He is charged with "faithfully executing" his office, which means implementing laws passed by Congress faithfully, regardless of whether he agrees with the underlying policy. The ACA requires that he make a good-faith determination of what essential health benefits insurance policies must provide; the EPA, that he regulate carbon dioxide emissions; the ESA, to take steps to protect endangered species; and so on. The APA also imposes rules defining how he's to do this, rules he's more fond of ignoring.

    He sees Obama's usage of the agencies, a regulatory body by fiat not of Congress, as an incorrect usage of the laws that created the agencies.

    The President cannot create agencies "by fiat." Every regulatory body with any legal authority must be backed by congressional direction or authorization. Pretty much the only thing that the President can do "by fiat" is issue executive orders and form legally non-binding bodies to advise him (using a budget allocated to him for such purposes by Congress).

  • Robert||

    Where does the Environmental Protection Act say anything about regulating carbon dioxide emissions? That was EPA's decades post-hoc decision that CO2 was an air pollutant. And then it would've taken some pretty fancy selective regul'n to avoid controls on exhalation, just as FDA's determination (even longer post-hoc, and after several previous decisions to the contrary) that tobacco products were medical devices would've taken extremely cynical pleading to not result in a ban on them.

  • SimonP||

    It's kind of bizarre to argue that Obama, by charging the NLRB to protect labor, the EPA to protect the environment, etc., was "incorrectly using" them is utterly bizarre. No, I think what you mean is whether Obama was properly within his statutory authority, whenever he pushed to use that authority in admittedly "novel" ways. There's plenty of criticism to be found there, if we're honest, though most of those arguments are nuanced to the point that I surmise they'd be entirely over your head. But by the same token it's possible to go beyond the scope of presidential authority by simply under-enforcing direct congressional mandates, which Trump and his delegates seem almost eager to do.

    They've all released multiple reports since Trump came into office, so there goes your implication that the agencies are gutted and not doing anything.

    Issuing reports doesn't exactly mean much. Are you 14?

    Your arguments tend to the childish side.

    That's rich, coming from a profound ignoramus. How should I describe your arguments, then? Neo-natal?

  • Robert||

    Because mostly the regs justified by enabling legisl'n are matters of opinion. That's why they solicit comments on them; that's why the APA exists.

    This is a matter of explicit eschewal of enforcement of legisl'n. Trump could instead order Sessions to find in favor of descheduling cannabis, because the enabling legisl'n actually exists for such an action by the att'y gen'l, & since the scheduling criteria are matters of opinion too, any amount of arm-twisting is justified. Nobody can prove you're lying about an opinion.

  • Sarcastr0||

    I love it when Brett and I agree.

    As a general prospect, I'm all for some prosecutorial discretion, but here the entire enterprise is pretty clearly rotten. And IMO it's distorted our Fourth Amendment well beyond recognition.

    I'm not sure what drugs beyond pot to draw the line at, though.

  • Brett Bellmore||

    Thionite?

    Constitutionally, only one drug has a different status from all others: Alcohol.

    The others, from caffeine to meth are constitutionally indistinguishable, because this isn't a drug specific issue, it a conspicuous lack of any relevant enumerated power.

    Congress simply wasn't delegated the power to ban things. Not drugs, not guns, not diddly squat.

    They actually knew that when they originally started the war on drugs, which is why the first drug laws were enacted as tax laws, not bans. Instead of banning a machine gun or a reefer, they simply levied an insanely high tax on it. And then the Supreme court, already having been cowed by FDR, refused to acknowledge that a 5000% tax on something was actually a fine, not a revenue measure.

    Later they took the next step, refusing to accept payment of the tax. It was at that point that the original drug laws got overturned at the Supreme court, and the modern drug laws, which were actual bans, got enacted. Then the Court took it's own next step, authorizing what it had previously recognized as beyond the pale, by pretending that a ban of things entirely within a state was regulating interstate commerce.

    But whatever your take on it, aside from alcohol, there's no constitutional basis for line drawing. All or nothing.

  • Sarcastr0||

    Yeah, I was talking policy, not constitutionality. We can debate commerce clause another time; I want to bask in the consensus for a while.

  • FlameCCT||

    IMHO it should be all of them although that would also require removing usage as justification for committing crimes as well as placing responsibility where it belongs, on the individual. IOW individual liberty and responsibility for one's own actions and resultant consequences.

  • Michael Ejercito||

    This reasoning would imply that the Gun Control Act of 1968 is an assault on federalism.

  • Sarcastr0||

    Do you think Prof. Somin would disagree with that or something?

  • Michael Ejercito||

    No, just considering broader implications.

  • Sarcastr0||

    If you're predicting we'll see Dems briefly defending federalism and the GOP not caring about it, only for the reverse to be true about guns...you are so correct it's almost boring.

  • JesseAz||

    Which of the conservative commentary here is defending the drug laws in this series of comments? So far the only comments I've really seen from them are about repealing the laws instead of selective enforcement.

  • Sarcastr0||

    Not the commenters here, but Sessions is a well know GOP guy. So is Trump...Pence...they all seem on board with this.

  • MatthewSlyfield||

    When was the last time any Democrats in DC actually tried to do something about scaling back the war on drugs?

    Every politician in DC is on board with this.

  • Sarcastr0||

    When is the last time a Democrat was as crazed a drug warrior as Sessions? Or invokes anything like cantaloupe-sized drug-throwing calves?

    Your attempt to paint everyone as equally bad conflates nonfeasance and malfeasance. Both are bad; one is much worse.

  • Careless||

    "Or invokes anything like cantaloupe-sized drug-throwing calves?"

    Wut?

  • jonmarcus||

    Rep Steve King (R-IA)

  • Robert||

    Joe Biden.

  • ||

    Under Bill Clinton, more people were arrested and jailed for marijuana than the two previous administrations combined.

  • Brett Bellmore||

    This is, unfortunately, one of those cases where constitutional jurisprudence has gotten so far off track that the courts are almost certainly never going to muster the will to fix it. It will take a constitutional amendment or revolution to get back to enumerated powers doctrine and genuine federalism.

    Even Dred Scot and the Slaughterhouse decisions never got properly overturned, the Court invented "substantive due process" to selectively incorporate bits of the Bill of Rights, instead of the wholesale incorporation via that P&I clause that everybody knows the 14th amendment was supposed to provide for.

    If they can't bring themselves to overturn the Slaugherhouse cases, you think they're going to overturn Wickard? Not a chance, sadly.

  • SimonP||

    It will take a constitutional amendment or revolution to get back to enumerated powers doctrine and genuine federalism.

    The idea of "revolution" being on the backburner is a strange fetish that libertards entertain for some reason, and it certainly doesn't give me any confidence that they can be trusted to behave like mature adults in any political society. And spare me the Jefferson. He can be and probably was wrong.

    Suffice it to say that whatever ills "revolution" can be said to address, when it comes to federal overreach, the idea that it could be a means of re-establishing federalism is astonishingly bizarre. You can't violently re-impose a new order of relations between the states and some federal government while maintaining that you're just respecting the principles of "federalism" when doing so. You might be able to re-establish full state sovereignty by secession, perhaps; but "revolution?" Who exactly would you be at war with, in that scenario?

    If you want to re-establish "federalism," you need first to examine why we've drifted away from it. It will do you no good to reset the federalist clock, just to find yourself in need of greater centralized power once again. Until you've done that, you're just hocking ideologically vapid platitudes.

  • Rev. Arthur L. Kirkland||

    The idea of "revolution" being on the backburner is a strange fetish

    Seem a natural one.

    The militia members and gun fans need something to talk and fantasize about, especially now that the black guy is no longer in the White House, and even they tend to recognize that panting after Crooked Hillary may be fun but is a lame facsimile of doing something important.

    The goobers know society has been and is trending away from them, and don't figure they can do much about the future except delay some progress temporarily, so they turn to dreams of a revolution as a way of keeping their aspirations for returning to the "good old days" alive, at least in their minds.

  • kramartini||

    You are correct in citing Wickard as the root of the issue.

    Wickard, of course, was wrongly decided for many reasons, not the least of which is that it relied on the baseless assumption that, had Farmer Filburn not grown the excess wheat, he would have purchased price-supported wheat to feed his livestock when it seems more likely that he would have simply converted his fields to unregulated hay.

  • bernard11||

    had Farmer Filburn not grown the excess wheat, he would have purchased price-supported wheat to feed his livestock when it seems more likely that he would have simply converted his fields to unregulated hay.

    Maybe. It's an interesting point. We don't know what he would have done, though. It would depend, obviously, on the cost of various alternatives - planting hay, buying wheat and devoting the excess land to some other crop, buying feed other than wheat - who knows. Neither do we know what other farmers would have done.

  • BillyG||

    The Obama era policy was an assault on the rule of law. First, it was a stated intent to not enforce the law. If the executive branch can decide to not enforce a law as policy, then we are not a nation of laws but a nation of men. A truly dangerous situation in which the executive can decide by fiat who to jail because they have displeased the executive. To remain under the rule of law, all laws must be enforced, and enforced equally. Which brings to the second reason this policy is terrible. Enforcement of the law was being only in certain states, meaning where the act is committed impacts prosecution. Light up in CA? You're good. Light up in Illinois? You're getting prosecuted. This makes no sense for a Federal Law where all laws are supposed to apply equally nationwide.

    The proper way to do this would be to remove Pot from the Controlled Substances list. Although I'd rather have a re-look at whether such a list is constitutional in the first place. If you really want Federalism, you should be asking how the Federal government is able to ban such substances in the first place.

  • Sarcastr0||

    The Obama era policy was an assault on the rule of law.

    Open direction of prosecutorial discretion is not an assault on rule of law. The law has never worked without discretion. Such a blanket statement is less substance and more hostility looking for an excuse.

    Sessions' revitalizing the war on drugs is also not an assault on the rule of law, it's only super dumb and gives law enforcement more opportunities to abuse their power.

    Obama's choice to devolve policy decisions on drugs is not a problem in a federalized system, which we are. Do you wish we were otherwise?

  • Bob from Ohio||

    A blanket " no enforce" policy is not "discretion". Discretion involves a case by case analysis of factors that mitigate against [or for] prosecution.

    The executive should not just take an entire section of a law off the books by a broad refusal to prosecute.

  • Sarcastr0||

    We're back to the faithfully execute analysis, just like with DACA.
    Laying out principles to guide the discretion of people below you is a pretty common practice, but I will allow that you make a decent point about the blanket policy not being the same as case-by-case.

    There's clearly some line-drawing to be done about when managerial guidance becomes arrogating legislative power to you. This is not helped by decades of Congress enthusiastically delegating everything they can away from themselves to avoid political accountability.

    I'll need to meditate on a guiding principle here, but I am not offended by devolving policy for one drug down to the states. Or de-prioritizing deporting illegals who came over as children. I wouldn't be as happy were it all drugs. Or directing the DoJ to never ask for the death penalty, for that matter.

  • Bob from Ohio||

    "I wouldn't be as happy were it all drugs. Or directing the DoJ to never ask for the death penalty, for that matter."

    Once you accept the concept for one thing [like pot or DACA], there is no limiting principal not to apply it to other things.

    Happy or not happy depending on the ox involved is not a principal.

  • Sarcastr0||

    Death penalty is very much not my ox.

  • NToJ||

    "Once you accept the concept for one thing [like pot or DACA], there is no limiting principal not to apply it to other things."

    Huh? Why? The limiting principle relates to the thing itself. If we think [pot] is super important because enforcing the law is really, really immoral, but we don't think DACA is super important because keeping kids out isn't immoral, then the limiting principle is that you abandon federalism only when it's really important. That's how it has always been. Federalism is great, until you have states actively preventing black people from voting. There's no slippery slope.

    In any event, the non-enforcement here is perfectly consistent with federalism. Since interstate commerce is the basis of the CSA, the legalization in some state is a reason not to enforce an interstate ban, since the state no longer wants the federal government's help in banning the substance. What interest does the federal government have in banning weed intrastate in Colorado?

  • TwelveInchPianist||

    There's a big due process problem with casting proprietorial discretion as policy. For example, what happens if CA authorities suspect that a local pot shop is selling to minors? OTOH, what happens if the feds suspect that a local pot shop is selling to minors?

  • TwelveInchPianist||

    "proprietorial discretion"

    damn lack of edit feature.

  • EscherEnigma||

    Seeing as the guidance was "don't go after folks complying with the state law", a place dealing to minors was still fair game.

  • TwelveInchPianist||

    Sure. But if the state suspects people are selling weed to minors (or otherwise violating state law), they have to prove, beyond a reasonable doubt, to a jury, that the people were, in fact, selling weed to minors. But if the feds suspect that someone is selling weed to minors, all they have to prove is that the people were selling weed.

  • NToJ||

    So?

  • NToJ||

    So?

  • TwelveInchPianist||

    So you are putting people in jail without making the government prove that they did the thing you want to put them in jail for.

  • ||

    Exactly. "Discretion" would be refusing to prosecute law enforcement for "using a machinegun during a crime of violence" when that machinegun was provided to the officer by the government. Refusing to prosecute ANY machinegun violation is not discretion.

  • bernard11||

    But it doesn't actually need to be case by case.

    Discretion can be, "Here are principles we are going to use to decide what to prosecute."

    Such principles might have to do with lots of things, including whether the alleged offender was violating state law. These are essentially the same thing as the factors you talk about. Indeed, having a set of rules of this sort has some benefits, like avoiding arbitrary decisions to prosecute or not, or inconsistencies in federal enforcement across states.

  • JesseAz||

    Discretion imposed on all prosecutors by EO or Memorandum is not "prosecutorial discretion." By definition that is a policy change.

  • Sarcastr0||

    What's the functional line there? If a DA puts out a memo, is that now legislating?

  • Careless||

    While you can argue over where the exact line should be, the president saying that it will not be enforced at all is all the way over to one side as far as it could possibly be. Sorry, as much as I hate the war on drugs and, from a results standpoint, find this action regrettable, that's just not discretion.

  • NToJ||

    When did any President say the CSA would not be enforced at all?

  • TW||

    Good points, particularly on how only people in certain states needed to fear prosecution under the Obama administration's policy of selective enforcement.

  • Sarcastr0||

    Now everyone needs to fear. Not exactly an improvement.

  • Jerry B.||

    If AG Sessions wanted to enforce some unenforced laws that would really do some good, he might look at the dismal record of the DOJ in prosecuting firearms laws, particularly those for felons in possession and straw purchases. Probably be a lot more useful overall than chasing state-recognized pot dispensaries.

  • Careless||

    You think felons in possession of firearms who are caught aren't prosecuted? ... Just going to back slowly away here

  • Brett Bellmore||

    No, that's largely correct, the federal government is very lax about enforcing firearms laws against, you know, actual criminals.

  • Sarcastr0||

    There is no area I am more optimistic about than drug laws. Witness the excellent light/heat ration on these two threads.

    Popehat's lawsplainer provides some useful perspective on the actual functional effects of Session's actions.

  • Bob from Ohio||

    If there is such a consensus against prosecuting pot crimes, should be easy to change the law so that there is a permanent direction to not enforce where states have legalized it, not just a budget rider.

  • Sarcastr0||

    In a federal system, all it takes is a strategically placed vocal minority to derail the momentum of consensus...

    In a representative democracy with an administrative state, all it takes is some old elitists who cling to the wrong side of history :-P

  • Brett Bellmore||

    Even a lot of the members of Congress who don't want them prosecuted are reluctant to give up even a tiny increment of federal power, unfortunately.

  • Sarcastr0||

    In reality, I see no evidence Congress has that general incentive. This is not even functionally Congress's power it's keeping

    Never chalk up to sinister federal imperialism what you can to craven anti-change risk-aversion.

  • JesseAz||

    Federalism by EO is not federalism. The correct solution is not to have Obama issue a memo saying he will ignore a law, but to have Congress (or the courts) repeal the law. That is the correct solution to an argument on federalism.

  • EscherEnigma||

    Only if you're restricting your discussion to theory.

    The moment you get to the real world, you have to consider what is practical and feasible as well. So while Congressional action is preferable then a memo, if you can't *get* the Congressional action, it's better to go with the memo then do nothing.

    Some let the perfect be the enemy of the good.

  • swood1000||

    For reasons well-summarized by co-blogger Jonathan Adler, this is a bad decision on both policy and legal grounds.

    What are the criteria here that allow us to say that it is better from both a policy and a legal standpoint for a President to issue a blanket statement to the Justice Department not to enforce a certain federal law?

    What criteria, if present, would allow us to conclude that an order by the President to the IRS not to enforce certain provisions of the Internal Revenue Code would be appropriate from both a policy and a legal standpoint?

  • jph12||

    "In the short run, the impact may be relatively minor. The Obama policy offered far from complete protection to cannabis businesses. To the contrary, as I explained back when the policy was first instituted in 2013, it included numerous exceptions that in practice allowed federal prosecutors to go after almost any marijuana producer they had a strong desire to target."

    It was never a blanket statement not to enforce the law, which is why I'm a little surprised by how much attention this is getting.

  • swood1000||

    It was never a blanket statement not to enforce the law, which is why I'm a little surprised by how much attention this is getting.

    It was a blanket statement not to enforce except in certain specific circumstances. It had the effect of preventing most prosecutions in these states. I don't really see your point.

  • NToJ||

    "It was a blanket statement not to enforce except in certain specific circumstances. It had the effect of preventing most prosecutions in these states. I don't really see your point."

    That's a strange way to frame it. Since the "blanket statement" applied to a minority of states, why aren't those states where it is unenforced the exceptions? The DEA arrested about 30,000 people per year under President Obama, which was roughly the same as it was under President Bush, which was lower than it was under Clinton, but higher than it was under Reagan and H.W. Bush. It's been business as usual, which is what you would expect, since arrests not made in Colorado are going to be made someplace else, because there's orders of magnitude more "criminal" behavior than there are federal resources to prosecute all the federal crimes. Even if the feds only enforced the law in like 5 states, there could still be 30,000 arrests, since the limiting factor on arrests is not the criminal activity, but enforcement capacity.

  • swood1000||

    Since the "blanket statement" applied to a minority of states, why aren't those states where it is unenforced the exceptions?

    Blanket means "covering or intended to cover a large group or class of things, conditions, situations, etc." It doesn't mean that it covers every possible item that could be covered. If the President said not to enforce the marijuana laws in certain specified States except in situation X, that is a blanket order not to enforce the laws in those States except in situation X.

    The DEA arrested about 30,000 people per year under President Obama, which was roughly the same as it was under President Bush, which was lower than it was under Clinton, but higher than it was under Reagan and H.W. Bush.

    Which is what one might expect when law enforcement shifts its focus to drugs other than marijuana.

    It's been business as usual…

    Shifting the law enforcement focus in specified States is not business as usual in those States.

  • NToJ||

    Your link is broken but it isn't important. We don't need to have a pointless semantic discussion about your framing. It doesn't matter.

    "Which is what one might expect when law enforcement shifts its focus to drugs other than marijuana."

    That's the point, right? If Congress removed marijuana from the CSA tomorrow, there would still be tens of thousands of drug arrests. Which speaks directly to the fact that since Congress has asked the President to enforce more laws than he has resources, discretion is going to be exercised at some point. Whether there is a memo or not, the executive branch isn't going to chase every drug user in the country (for the reason that it can't).

  • swood1000||

    there's orders of magnitude more "criminal" behavior than there are federal resources to prosecute all the federal crimes.

    Does this rationale always work to permit the President to order that any federal law he designates should not be enforced, since there are always insufficient federal resources to prosecute all potential violations of federal law? The President can order the IRS not to enforce certain specified parts of the Internal Revenue Code, giving as his reason that IRS manpower is insufficient to deal with all potential violations of the tax laws, and you would approve of this approach? That's even better than a line item veto, since it gives the President the authority to veto (for the period of his term of office) line items that were enacted long ago.

  • NToJ||

    "Does this rationale always work to permit the President to order that any federal law he designates should not be enforced, since there are always insufficient federal resources to prosecute all potential violations of federal law?"

    That's not what we're dealing with here, since the President never said he's going to stop enforcing the CSA. But let's be clear about what "permit" means. It might be the case that the take care clause is non-judiciable, in which event the President would be permitted to do so. Even if "take care" is judiciable, SCOTUS doesn't have the authority to issue an injunction against the President to do anything. It can say that the executive order is unlawful, but the President is still answerable, primarily, to the voters.

    If you are asking whether I would "permit" the President to not enforce laws just because he disagrees with them? No. But I have no issue with the last order limiting enforcement of a federal interdiction law to states that have expressed an interest in prohibition.

  • NToJ||

    "giving as his reason that IRS manpower is insufficient to deal with all potential violations of the tax laws"

    This happens everyday. People get away with tax violations.

  • Sarcastr0||

    It's not to not enforce - it's to not enforce in states where the states do not enforce. That has been held within the President's legal authority, at least sometimes.

    And even if you don't care for the procedure, the fact that you didn't even mention the policy shows you have enough awareness to at least duck the policy question.

    Based on current precedent, it would indeed seem to be within the President's powers to prioritize IRS limited resources in certain ways. Of course, given how hot a button taxes are, the policy side would be questionable.

  • swood1000||

    That has been held within the President's legal authority, at least sometimes.

    When has it been held to be within the President's authority not to enforce federal law that a state didn't like?

    And even if you don't care for the procedure, the fact that you didn't even mention the policy shows you have enough awareness to at least duck the policy question.

    I'm ducking what question? If the President disagrees with the policy of federal law does that give him the right not to enforce the law?

    Based on current precedent, it would indeed seem to be within the President's powers to prioritize IRS limited resources in certain ways.

    Can the President refuse to enforce any federal law he disagrees with, on the grounds that he is prioritizing limited federal resources?

  • NToJ||

    "Can the President refuse to enforce any federal law he disagrees with, on the grounds that he is prioritizing limited federal resources?"

    Yes because it's non-judiciable, or should be non-judiciable.

  • swood1000||

    "Can the President refuse to enforce any federal law he disagrees with, on the grounds that he is prioritizing limited federal resources?"

    Yes because it's non-judiciable, or should be non-judiciable.

    Richard Nixon vetoed the Federal Water Pollution Control Act Amendments of 1972, but it was passed over his veto. Then he declined to spend the funds that the Act ordered to be spent. The Supreme Court held in Train v. City of New York that he had no authority to sequester these funds. So a Presidential refusal to enforce federal law is not automatically non-judiciable.

    Furthermore, are you saying that the President can properly take any action that is non-judiciable? Non-judiciable means that the Courts don't have the authority to hear the case, not that the actions of the President were proper. The remedy for non-judiciable wrongdoing is impeachment and removal from office.

  • NToJ||

    What about an election...?

  • NToJ||

    Since the entire legal basis of the drug bans under the CSA is the Commerce Clause, it makes sense that the feds wouldn't enforce the ban in states that have decriminalized the drug. The CSA is intended to keep prohibited drugs from passing in interstate commerce. Growers in Colorado aren't growing prohibited drugs and placing them in interstate commerce.

  • swood1000||

    Since the entire legal basis of the drug bans under the CSA is the Commerce Clause, it makes sense that the feds wouldn't enforce the ban in states that have decriminalized the drug. The CSA is intended to keep prohibited drugs from passing in interstate commerce. Growers in Colorado aren't growing prohibited drugs and placing them in interstate commerce.

    But this is completely contrary to the Supreme Court decision in Gonzales v. Raich (2005), which held that Congress's power to regulate interstate commerce allows it to ban the possession of medical marijuana that had never been sold in any market or crossed state lines.

  • NToJ||

    So the legal authority to ban something is not the same thing as the reason to ban something. The interstate drug trade is a national problem in so far as drugs are traveling interstate. But if states no longer think drugs should be illegal at all, the feds don't have a commerce clause reason to disagree. The feds should be agnostic about the problem with drugs, and enforce bans only to effectuate the underlying states' interest in preventing State A from exporting dangerous stuff to State B. The feds can do this at the state line between A and B.

  • swood1000||

    The feds should be agnostic about the problem with drugs, and enforce bans only to effectuate the underlying states' interest in preventing State A from exporting dangerous stuff to State B.

    Are you saying that when a State disagrees with a federal law that the Supreme Court said they must obey, the President should order the appropriate federal agencies not to enforce the law in that State unless the law deals with something that is "really" (i.e., pre Wickard v. Filburn) interstate commerce? So, for example, you would say that the crop support program that was the subject of Wickard v. Filburn should only have been enforced in State X if that State wanted it to be enforced? But how is such a policy to be reconciled with the contrary rulings of the Supreme Court?

  • NToJ||

    No. What I'm saying is that the crop support program at issue in Wickard involved a national problem (stabilization of the price of wheat, nationally). The CSA is not intended to stabilize national drug prices. It's intended to ban substances that the federal government thinks are yucky. But the federal government doesn't have any interest in "are yucky" independent of the states. The commerce clause basis for the CSA is because states don't have the power to prevent their neighbors from causing yucky things to enter their state by putting those yucky things in interstate commerce. Once the states say the thing is no longer yucky, the federal government loses an interest in enforcement of an intrastate ban. If Colorado doesn't think the thing is yucky, why would the feds want to keep it out of Colorado?

    Think of gambling. There are federal restrictions on interstate and online gambling. But the feds don't ban gambling in Nevada just because they have (technically) the power to do so.

  • swood1000||

    No. What I'm saying is that the crop support program at issue in Wickard involved a national problem (stabilization of the price of wheat, nationally). The CSA is not intended to stabilize national drug prices. It's intended to ban substances that the federal government thinks are yucky.

    But the Supreme Court in Gonzales v. Raich said that a federal law prohibiting the sale of marijuana in the States is just like Wickard:

    Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs. …the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. …We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding.

    So doesn't your objection just come down to a disagreement you have with the Supreme Court (one which I share with you)? Under the current law of this country the States are required to obey this federal law, even if they think that it "really" does not involve interstate commerce.

  • NToJ||

    "to combat the international and interstate traffic in illicit drugs..."

    Yes, but in Colorado the drugs aren't illicit. That's the difference.

  • swood1000||

    Think of gambling. There are federal restrictions on interstate and online gambling. But the feds don't ban gambling in Nevada just because they have (technically) the power to do so.

    However, in the case of marijuana the feds do ban it in all States.

  • NToJ||

    Well, no, federal law does not ban it in states where medical marijuana is approved.

  • ||

    The ultimate problem is that the average American wants the federal government to do far more than it's authorized to do so by Article I, Section 8. Therefore, there will never be any movement, in Congress or the courts, to constrain the federal government's power, as it's directly contrary to what most people want. Constitutional principles only work so far as the people generally believe in them. Unfortunately, most do not.

  • ||

    The laws against marijuana are the surest proof that all laws should have a mandatory 10-20 year sunset provision. Many Congressmen who are reluctant to change the law out of momentum wouldn't affirmatively authorize a renewal today.

  • TwelveInchPianist||

    If Congress doesn't like Sessions enforcing the law, they should get off their asses and repeal the federal pot ban.

  • Bored Lawyer||

    Problem is, as in many areas, people support a principle only when it suits them.

    If the federal government can tell an individual farmer he cannot grow wheat on his own farm to feed his own family, then it can also tell him not to grow pot or sell it to the guy down the road. If you have an issue with the latter, then you need to explain why the former is legitimate.

    (And, yes, I recognize there are those who would reject both. I am addressing this to those who supported the one and now complain about the other.)

  • ||

    Or those who think Congress has the authority to require background checks if Person A sells a handgun to Person B, living right next door in the same state.

  • NToJ||

    Just because Congress can (legally) do something doesn't mean it should.

  • RPGuy16||

    Obama had 8 years to take marijuana off the schedule but affirmatively chose not to. I really thought that would be one of his parting acts, but he managed to find a way to let me down on more time.

  • UnityFollowsValues||

    My dog was having seizures but when we gave him CBD oil his seizures dropped from 2 a day to one a week. Then adding Keprah and Phenobarbital, his seizures dropped to one every three weeks. My point is medical Marijuana is growing in popularity because it helps people and animals to get past some health issues whether sleeping better or seizures plus more. I am personally shocked that more research has not been done but only an idiot (as a segue to the Elmer Fudd impersonator Jeff Sessions) would ignore the medicinal value to shut it down.

    I also think recreational Marijuana is no worse than alcohol but people driving under the influence need to be accountable. I think when states voted it in, it happened for good reason yet before the infrastructure needed to guide sane use was put in place. Ah the word "sane" and Jeff Sessions would be an oxymoron if placed together.

    Look at how these jerks put down things that beg a better understanding or solution if it offends the big money that lines their pockets. Our environment is a perfect example as some experts cite our ignorance may cost us a planet now within 100 years unless our toddler-in-chief decides to push his button sooner.

    Sessions is just more of the breed that has no business doing a job that requires intelligence, consciousness, and integrity, just like DeVos, Pruitt and most other Chump appointees.

  • Rev. Arthur L. Kirkland||

    We should probably take a moment to recall that Jeff Sessions once said that he thought the Ku Klux Klan was a bunch of good guys until he learned they smoked dope.

    (If you look at that and see anyone other than the dope-smokers as the good guys, please try to develop enough self-awareness to recognize that you are a substandard human being.)

  • ||

    Don't be a fool. That comment was clearly a joke.

  • Rev. Arthur L. Kirkland||

    Clearly?

    You figure Jeff Sessions might not be infused by a southerner's sympathy for the KKK? You want to try to argue that he cut across that grain and was a decent, modern person with respect to race?

    Please try. Perhaps some reason.com visitors are young people (who will be voting for the next 40 or 50 years) lacking exposure to conservatives voluntarily discussing racial issues, misogyny (I'm referring to voting rights for women, kids), gay-bashing, Muslims, xenophobia, half-breeds (you prefer "mezitos", as I recall), and the like.

  • AD-RtR/OS!||

    "The best way to get a bad law repealed is to enforce it strictly."
    - Abraham Lincoln

  • Semper Gumby||

    It's really very simple for me. I have a real dislike for the things we appear to need to make us happy,....and yes that includes pot. Should anyone hurt or God forbid kill my grandchild (or plural) while under the influence of pot and the like,....there will not be a trial. That person will never make it to the court house steps,...guaranteed. If you are that mindless that you need to sit on your butt and light one up for a thrill,...think twice. You really cannot find any other "activity" to fill your spare time?

  • Robert||

    Could you please elaborate on "the things we appear to need to make us happy"? Do you mean the things that falsely appear so? I'd have trouble believing you dislike the things we actually need to make us happy.

  • Ghost on the Highway||

    The California legalization isn't very liberal. People can legally only own 1 ounce and you have to smoke it in private. If the state really wants to make it legal, why unnecessarily restrict how much people can grow and possess, and where they can smoke? And If marijuana is safer (or is safe as) alcohol - why the tight restrictions? A bit like California saying you can only own X number of bottles of wine and can't have a glass at a picnic in the park. Making it completely legal would also lower the cost - people could save money directly by growing their own (5 plants that is) or getting through a co-op or something like that. And if you have the money and want a guaranteed quality albeit small quantity, buy your weed at a government licensed store.

    Cost of street weed in California is about 160$ per ounce. Legal weed about $350 per ounce (expensive). This large price difference between street weed and government weed will continue to support a black market in illegal weed production and sales. Quite akin to alcohol bootlegging except there is a larger profit margin in selling weed versus illegal liquor. Of course, this will necessitate law enforcement involvement to try to suppress untaxed weed. Thus, some people will still continue to get into legal trouble for buying and selling weed through illicit channels - fines and possibly jail time.

  • Brett Bellmore||

    " If the state really wants to make it legal, why unnecessarily restrict how much people can grow and possess, and where they can smoke?"

    Not speaking to the former, but "second hand smoke" is, IMO, a bit more of an issue with pot than with tobacco.

    Aside from that, yeah, very stupid law. It's California, you expected brilliance?

  • Ghost on the Highway||

    Well, you can pick cancer or getting high from second hand smoke. I vote for the getting high. Ha!

    Estimated tax on the government weed is between 35% and 40% when you add in whatever the locals decide to add. Ol' Jerry sees this as a money making luxury tax.

  • SimonP||

    Aside from that, yeah, very stupid law. It's California, you expected brilliance?

    State legislatures, as a rule, are not filled with top-notch legal minds. You won't find brilliance in Kansas's legislature, either.

    But nonsensical, arbitrary distinctions like those that GotH has described are typical in situations where you're trying to find a "compromise" between right and left (or, as may be the case here, left and center-left). That's why ACA was structured around the individual mandate (rather than single payer) and negotiations with Republicans and centrist Democrats nuked the public option. That's why the tax cut bill was full of strange pay-fors and trade-offs (like cutting a $20/month bike commuting deduction and lowering the top marginal tax rate in order to lessen the sting of capping SALT deductions) and was passed without any clear plan to cut spending. It's not a right/left thing. It's politics.

  • Myk||

    The majority of states have some level of legal cannabis, even if some are impossible to qualify. The answer to Sessions is for the "states rights", "freedom caucus" and even the pro-business Republicans to put their money where their mouth is and legalize it federally. End the prohibition that has failed as bad Prohibition did. Of course those fake freedom screamers won't, they only want freedom to enforce their form of sharia.

  • Rev. Arthur L. Kirkland||

    The "states' rights," "freedom caucus," and "traditional values" coalition is unlikely to accept legalized marijuana. Those folks are still petrified that the darkies will go crazy on the reefer and forget to lower their gaze in the presence of white women. They're solid drug warriors.

    Especially because they figure their children, if caught with a doobie. will be driven home by the police for a good talking-to.

    So, as is usual, their betters will need to shove this progress down movement conservatives' throats.

    Sideways, I hope.

  • Old Monkey||

    Before asserting "State's Rights" to pot, consider:

    Precedence of law on alcohol and other inebriant, regulated since the founding of the the US, and tobacco..

    Alcohol is regulated for safety, labeled potency, and Federally taxed. Pot is not. Individuals are not allowed to distill Alcohol, and sell it with only state supervision. Burning of pot using inhalation of smoke to convey inebriation, has been found to be worse than cigarettes. Where's the warning labels? There have been incidents of pot being improperly sprayed with weedkiller, and additional concern about pot due to chemical contamination. When someone smokes cigarettes they know ALL the risks, and safety (or lack of safety) of what they ingest. Not so with pot.

    40 years ago I smoked pot Thai Stick on a regular basis, and enjoyed it. The strength of current offerings of pot far stronger than what I used to smoke.

  • Robert||

    The weed killer was an attempt to eradicate the cannabis before it grew up. No commercial grower would apply such a material.

  • ReaderY||

    In a functioning democracy in s pluralistic society, it has to be possible to disagree with a policy without demonizing the person.

    Like it or not, the Supreme Court upheld the constitutionality of federal marijuana law against simple possession in Raich v. Ashcroft. Whether you disagree with the policy or not, an AG has to accept the law as SCOTUS declares it.

    The President, and the AG, are sworn to faithfully execute the law.

    And the Trump administration campaigned on the sort of law and order platform that has traditionally included cracking down on drugs.

    Enforcing the law Congress enacted and the courts upheld, and keeping ones campaign promises, is not bad character. Elections matter. Acts of Congress matter. Court decisions matter. If you don't like the law, argue the law is bad and Congress should repeal it. If you think Raich v. Ashcroft was wrongly decided (and I do), argue for reversing it.

    But don't blame the AG, or treat it as a personal fault of his, for enforcing the law and for doing the job that the administration promised the voters they would do.

    There are many things I fault the administration for that go beyond left/right politics as usual. But this is politics as usual. It's just a legitimate policy difference. The political process has to deal with it.

  • swampwiz||

    I am waiting for the leak that Jefferson Pierre Gustave-Toutant Beauregard Sessions or one of his allies had shorted cannabis stocks.

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