Will AG Sessions Make Federalism Go Up in Smoke?

The Attorney General's threat to federally prosecute marijuana businesses in non-prohibition states is lawful, but contrary to federalism principles.


Several news outlets are reporting that Attorney General Jeff Sessions will rescind the Department of Justice memoranda providing that the federal government would largely eschew enforcement of federal marijuana laws against those acting in compliance with applicable state laws, unless there is a threat of trafficking, diversion, or juvenile access. [Update: The memorandum from AG Sessions announcing the new policy is here.] The move is almost certainly prompted by the decision of California voters to legalize possession and recreational use of marijuana within the state. That law took effect at the beginning of this year.

The Attorney General has the authority to reorient federal enforcement priorities in this way, but I believe that is a mistake. Given the breadth of federal criminal laws, the Justice Department must prioritize its limited enforcement resources. A logical way to prioritize enforcement efforts is to focus federal resources on those crimes that implicate distinctly federal interests (such as interstate trafficking) or that are difficult for state and local authorities to handle on their own (such as some complicated financial crimes and matters that cross state lines). Such an approach is not only more efficient, it is also consistent with the underlying constitutional structure, in which the federal government has limited and enumerated powers -- including the power to regulate commerce "among the several states" -- and in which general police power is reserved to the states.

The Cole memorandum issued during the Obama Administration was largely consistent with this sort of federalist principle. If anything, this memorandum did not go far enough. Ideally, Congress would reform federal drug laws to facilitate state experimentation while also protecting states in which prohibition is maintained from any excesses of their neighbors. (Note to members of Congress poised to criticize AG Sessions: Why don't you do your job and push legislation to address this issue?)

AG Sessions decision may satisfy some parts of the conservative base, but it will do little to control drug use, and much to destabilize a nascent industry -- as well as to drive more of the marijuana business underground and into the hands of organized crime. (It's also likely to hurt the Republican Party's political prospects, particularly with younger voters.) It's both bad policy and bad politics. (And, insofar as it's based upon the Supreme Court's unfortunate decision in Gonzales v. Raich, it's bad law too.)

The underlying legal and policy issues remain the same as when I last blogged on this subject in August. With that in mind, I reproduce my August 14 Volokh Conspiracy post, "Will Marijuana Make Federalism Go Up in Smoke?" below (free of any paywall).

During the campaign, Donald Trump endorsed medical marijuana and said pot legalization "should be a state issue, state-by-state." Attorney General Jeff Sessions, on the other hand, is a fierce opponent of marijuana and has opposed measures that would limit the federal government's ability to interfere with state decriminalization efforts. Last month, Sessions reiterated the federal government's authority to enforce federal drug laws "regardless of state law," and some fear he will resist congressional efforts to protect medical marijuana from federal drug laws. Yet Sessions is not the greatest threat to continuing state-level marijuana reform efforts.

Lawmakers and citizen initiatives have successfully reformed marijuana laws in a majority of states. Twenty-nine states allow for the medical use of marijuana, according to the National Conference of State Legislatures. Eight have legalized marijuana possession and use altogether, allowing for recreational use. At least a dozen more states have effectively decriminalized possession of marijuana in small amounts. Yet marijuana use and possession remains illegal under federal law, even in small amounts or for medical purposes.

As a practical matter, the federal government has neither the interest in policing nor the ability to police low-level infractions of federal drug laws. Limits on federal law enforcement resources mean that the Drug Enforcement Administration focuses its efforts on larger dealing and trafficking operations. This policy approach was formalized during the Obama administration in the Cole Memorandum, which clarified that the Justice Department has little interest in going after marijuana possession or sale that is compliant with state law and is not linked to interstate trafficking or sales to minors. Nonetheless, the federal prohibition casts a shadow over marijuana-related businesses and activities that have been legalized under state law.

To protect state-level reforms, Congress has enacted appropriations riders that bar the DEA from spending funds to "interfere" with state laws authorizing the cultivation, use, possession or distribution of marijuana for medical purposes. Despite Sessions's opposition, such a rider was included in the most recent spending bill that provides funding through Sept. 30.

The Appropriations Rider sends an important signal that Congress wants to allow states to allow medical marijuana, but it only goes so far. While the rider limits what the DEA can do, and was successfully invoked as a defense against prosecution in a case before the U.S. Court of Appeals for the 9th Circuit, marijuana use and possession remain illegal under federal law, and this has far-reaching implications. Marijuana reform advocates spend lots of time worrying that Sessions will find a way around the appropriations rider or depart from the set of priorities outlined in the Cole Memo. This threat is real, but other threats are greater.

The fact that marijuana possession remains illegal under federal law has far-reaching implications whether or not the DEA can raid medical marijuana dispensaries. For one thing, it means that banks cannot lawfully service marijuana businesses, as doing so means servicing a criminal enterprise. The result is that marijuana sales are conducted almost exclusively on a cash basis. (For more on the banking angle, see this excellent paper by Alabama law professor Julie Hill.) This cannot be fixed through an appropriations rider.

A bigger potential threat comes from the fact that marijuana possession and distribution are predicate offenses under the Racketeer Influenced and Corrupt Organizations Act (RICO). This means that those who produce or sell marijuana are potentially subject to civil RICO suits, whether or not such activities are legal under state law. So held the U.S. Court of Appeals for the 10th Circuit earlier this year. A federal judge once described RICO as "the monster that ate jurisprudence." Barring real reform at the federal level, it could be the monster that ate marijuana federalism, too. Here again, an appropriations rider is insufficient.

The only way to protect state-level marijuana reform efforts is to change federal law, either by ending federal marijuana prohibition or expressly allowing state reforms to proceed. Outright federal legalization of marijuana is unlikely — and might not be a good idea insofar as state-level reform efforts generate useful information about the best way for reforms to occur. Allowing different states to adopt different policies encourages policy experimentation and produces knowledge about the pros and cons of different legal regimes.

The end of federal alcohol prohibition provides a potential model for how state-level marijuana reform efforts could be allowed to proceed. After adoption of the 21st Amendment, federal law continued to prohibit the sale and distribution of alcohol where such activities remained illegal under state law. Put another way, possessing, transporting and distributing alcohol in violation of state law was itself a federal offense. This remains true today. Thus, if a business produces alcohol in one state with the intention of exporting it to another state in violation of either state's laws, it has committed a federal crime. In this way, the federal government allows each state to make its own choices with regard to alcohol policy and limits the effect one state's choices can have on its neighbors. There's no reason a similar approach would not work for marijuana.

Some opponents of state-level marijuana policy reform fear that legalizing marijuana in one state necessarily harms others. Such concerns are likely overstated, as Alabama argued in its powerful Gonzales v. Raich amicus brief, but can be addressed by limits on interstate trafficking, as has been done with alcohol. Marijuana would not be the first product to be legal in some states but not in others, and there's no reason the traditional federalism principles are not equally applicable here. Perhaps Congress should give it a try.

For those with more interest in this subject, here is my Introduction to a 2014 symposium on the federalism and marijuana, published in the Case Western Reserve Law Review. The full symposum is available here.

NEXT: Demise of Trump Voter Fraud Commission Is a Victory for Federalism

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  1. I have little to no use for drug warriors, and perhaps less for movement conservatives who appease these authoritarians for paltry partisan purposes.

    Both groups will continue to boast loudly about how much they love freedom and favor limited government, of course. .

    Carry on, clingers.

    1. Shh... nobody tell Arthur which states have some of the strictest "war on drugs" policies.

      1. Or which political parties enacted them...

  2. I think that Trump's appointment of Jeff Sessions as the AG is one of Trump's worst mistakes since becoming President. It led to the Republicans losing a Senate seat, led to the appointment of special counsel Mueller, and will cause a political backlash when the ultra-conservative policies of Sessions are put in place.

    1. I agree. I'm not sure that it qualifies as a Trump "mistake", though. My guess is that Sessions is the GOP establishment's guy in the White House, and that the establishment simply didn't give him any choice about the matter. It was Sessions or they'd refuse to confirm anybody.

      I think he'd likely have been replaced by now, if Trump were able to.

      1. You could be correct, but even if Sessions was the establishment choice, the establishment Republicans still lost out when the Alabama senate seat was lost.

      2. Um, what? Trump picked Sessions because Sessions was not part of the GOP establishment. I mean, yeah, he was in the senate -- but he was one of the only significant Republican officeholders to support Trump, at a time when the entire establishment was snubbing the clown.

    2. Republicans in lost a senate seat in Alabama because they sold out to the radical religious right and their false prophet Roy Moore. The man made a career of mocking the legal system.

      1. Well yeah, but they would have never been in the position to lose the seat if Sessions doesn't resign. But maybe it was Steve Bannon's plan to have Sessions be the AG so that he could have his boy Moore elected.

        1. When Sessions was announced as the pick for Attorney General, his senate seat was almost guaranteed to picked up by another Republican. If you look at the exit polls, blacks?which tend to vote Democrat?turned out in record numbers and Moore couldn't capture a large portion of the female vote. That is representative of the most important statistic: people were pissed at Trump, Republicans, and incumbents. That doesn't bode well for 2018.

        2. But-for, but not proximate cause!

      2. He lost by 1.5% or so, after the national party abandoned the seat. They lost a Senate seat because they preferred losing it to Moore in the Senate. We can disagree about why they preferred losing the seat, but that's why they lost it; If they'd fully funded and supported him, that would have been worth more than 1.5%.

        1. If only the sensible Republicans had pulled harder for the delusional, child-stalking bigot who pined for the days of slavery, the even more backward, ignorant, and intolerant Republicans could have pulled this one out in Alabama?

        2. I don't think you can blame the Republican party for this one. The issue at the polls is that more democrats?particularly blacks and females?turned out than expected. On top of that, plenty of conservatives like Sen. Richard Shelby decided to write-in a candidate when there was no serious contender for that method.

          1. Can't blame the Republican Party for Roy Moore?

            He was elected to important office more than once, by Republicans.

            He was placed on the general election ballot with a primary victory, by Republicans.

            He was the overwhelming choice of Republicans in the general election.

            Roy Moore, in Alabama and beyond, is the Republican Party.

          2. Your point about Republicans like Shelby using write-in candidates actually supports Brett's point about the Progressive GOPe failing to support candidates. Although that failure has been SOP for years where the Progressive GOPe support their Progressive Dem tovarisch in denigrating Conservatives, Libertarians, etc. and only supporting Progressive Republicans like Strange in AL. It's the same reason that they ended up with Trump as the party nominee; they supported Progressives like Jeb, Kasich, etc. and refused to support those like Paul, Cruz, etc. In fact they were so focused on ensuring Cruz didn't get the nomination that they ignored Trump until it was too late.

            1. What is the "progressive GOPe"? And what's the "e" for?

      3. "The man made a career of mocking the legal system."

        Yeah, but there were a lot of bad things about him as well.

  3. I'd rather have a look at whether federal marijuana laws are lawful in the first place. It seems predicated on the interstate commerce act. But where is the interstate commerce in this?

    1. Because somebody who grows pot on their own property and consumes it themselves MIGHT have bought pot that MIGHT have traveled across state lines.

    2. The current stance of the DOJ is that the use of tools that at one time in the past traveled in interstate commerce in the commission of an crime is enough for federal jurisdiction to attach under the Commerce Clause.

      It's very difficult to avoid interstate commerce these days. If you use any purchased gardening tools/supplies (even clay pots) to cultivate your marijuana it is 99.99999% likely that those tools/supplies traveled in interstate commerce.

      To avoid interstate commerce under this interpretation you would have to hand make all your tools yourself from local raw materials.

      But then the DOJ would likely claim that the tools you used to make those tools traveled in interstate commerce so they still have jurisdiction.

    3. Unfortunately, since Wickard, the interstate commerce clause has become virtually meaningless

    4. As a matter of positive law, this question was answered by Gonzales v. Raich.

    5. Let's not forget how Progressive have expanded the general welfare clause to the point that it allows the feds to do almost anything they want.

      1. To Spend on almost anything it wants to. That's a pretty big constraint.

        1. You can do a lot of arm twisting with the pocketbook.

          'Hey, we can't tell you what speed limits you should have in your state, or how you should set your drinking age, but we've taxed this money from your residents. Be a darn shame if you didn't get any of it back, if you get our drift'

          Is there some upper bound or taxation where you would consider it coercive?

    6. We had to amend the USC to ban alcohol, but a simple federal statute bans marijuana? That does not compute.

      1. We didn't have to amend the constitution to ban alcohol. That's just the path they decided to take.

    7. Raich isn't up for revisiting quite yet.

      Not that I even disagree, but is that really the hill you want to die on? A hill that was lost 2 decades ago?

  4. Sessions is just on the wrong side of history. The dominoes are already falling, and this is going to be a disaster for him, and the President.

    1. People who claim the "wrong side of history" often due so because they lack a logical or intelligent argument.

      1. People who won't make direct accusations have small penises. As an example: JessAz has a small penis.

        Why use "often"? Are you saying that my "argument" (what argument?) is not logical, or not intelligent? If so, here's how you would say that:

        "NToJ's argument that [X] is not logical because [Y]." Or, "NToJ's argument that [X] is not intelligent because [Y]." Then you fill in the the [X] and [Y].

        I'm not going to engage with someone so cowardly that they won't even state their position. If you think strict enforcement of marijuana is something that's going to come back because public opinion will turn, just make the argument. If you think the dominoes haven't started falling (because...) just say so. If you think Republicans--a majority of whom now support legalization of marijuana--are going to rally around Sessions or the President on this silly issue, just make the argument. But be a man about it.

      2. True, history doesn't have a "side" just like "change" isn't always "progress." Sessions might or might not be right on this issue as might the people who don't like the current law on marijuana which is that it's illegal in all fifty states. There's a mechanism for changing the law if they think that it's wrong and it begins with Congress not the DOJ.

        1. You act like there aren't presidential elections.

    2. Then again, he might be on the right side of history. He is just upholding current US laws instead of ignoring them like the Obama admin, same for immigration laws and others. At least this allows the States to take legal action to protect their Constitutional Rights which could force Congress to get off their asses and actually do their job instead of kicking the can down the road again. Then again, it might not force Congress to take action and ignore it as they did with the Voting Rights Act after being warned by SCOTUS.

      1. He might be. But support for marijuana legalization is at an all-time high. As recently as 2016, the only demographic that opposed marijuana legalization by >50% was the silent generation, and they're dying. This is just the tail-end of a demographic problem for marijuana criminalization that's been going on for 40 years.

        I'm not inclined to treat Sessions as some sort of strange anti-hero for pushing Congress into action. He's the problem, not the solution. And his rescission of the Obama-era policy is going to result in more morally innocent people being placed in federal prisons. I can't cheer for that.

  5. The party of limited government strikes again.

    1. The party of limited government and freedom.

      I remember when the Republican Party favored competence, reason, limited government, progress, science, tolerance, education, and humility. This was way back when southern bigots were Democrats rather than Republicans.

  6. Do the valid policy arguments in favor of legalization override the valid legal legal arguments in favor of criminalization?

    1. There maybe valid legal arguments in favor of criminalization at the state level, but I don't know of any at the federal level. The federal war on drugs is a constitutional abomination, we had to amend the Constitution to permit Prohibition, and what is the war on drugs? Just a vastly expanded Prohibition.

      1. The commerce clause and Gonzales v. Raich point to the issue being federal in nature. Given that the CSA is the federal law, Sessions should do exactly what he is doing. The issue for the last thirty years has been Congress not wanting to tackle the subject while privately acknowledging it as unfair, unwise, and unjust.

        1. That's just the sophistry they used, not a valid argument.

          AGs routinely refuse to enforce laws they view as unconstitutional, even if the courts don't agree with them.

          The fact is that Sessions is something of a police state guy, drug laws, civil forfeiture. I don't think we need to make excuses for him, he has the option of not doing the wrong thing, even if ideally the bad statutes should be repealed.

        2. "Given that the CSA is the federal law, Sessions should do exactly what he is doing."

          Withdraw largely superfluous memos?

  7. Guess the federalists are second guessing the standing ovation they gave Sessions a few weeks back for ... walking across the stage and being himself.

    1. Why? The Federalist Society is a movement conservative organization. That includes the social conservatives, for whom Jeff Sessions is a hero.

  8. Easy to fix. Congress can just change the law.

    1. How many authoritarian Republicans in the current Congress should we expect to vote for liberty in the context of drug warriors?

      1. You would be a fool to expect any significant number of Democrats in Congress to vote for liberty in the context of the drug war.

        1. Ummm, Dems aren't the ones scaremongering about law and order and Mexican drugs.

          What makes you think Dems would go drug warrior?

          1. "What makes you think Dems would go drug warrior?"

            History. The "war on drugs" has had strong bipartisan support in Congress from the very beginning.

            The "war on drugs" goes all the way back to Nixon. Neither Carter nor Clinton did anything to scale back drug war operations. The most Obama did was pull federal drug enforcement resources away from states that legalized marijuana at the state level and concentrated them on states that were still fully cooperating with the "war on drugs".

            1. The drug war has had bipartisan support for as long as the public supported the drug war. In 2018, the clear majority of the public no longer supports the marijuana prohibition portions, at least. Betting that the "strong bipartisan support" will stand against public opinion on marijuana is fool's bet.

              1. "History. The "war on drugs" has had strong bipartisan support in Congress from the very beginning."

                With respect to weed, this is no longer the case.

      2. How many libertarian Democrats voted against the laws?

        1. In 1970? Who knows, but the Democratic platform from 2016 expressly calls for the federal government to remove marijuana from the list of Schedule 1 federally controlled substances, and supports a "pathway for future legalization". You can compare that with the Republican platform, starting at the section "Combatting [sic] Drug Abuse". It's not very pro-legalization, though.

          1. 'Democrats are the real racists'

            'Democrats are the real vote suppressors'

            'Democrats are the real drug warriors'

            These are some of my favorite lessons from the Volokh Conspiracy.

          2. "2016 expressly calls for the federal government to remove marijuana from the list of Schedule 1 federally controlled substances, and supports a "pathway for future legalization"."

            They had a majority in both houses of congress, from 2016 - 2018 (when the lost control of the House of Representatives in mid term elections) and Obama in the White House. They did nothing to act on that plank of their campaign platform.

            I will accept the argument that national Democrat politicians and party leaders actually support decriminalizing marijuana and/or scaling back the drug war when they get around to actually doing something about it, rather than just talking about it on the campaign trail.

            1. The Dem majority in both houses, such as it was, was 2006-2008.

            2. The Democrats did not have a majority in both houses of Congress from 2016-2018. The 114th Congress (2015-2017) was controlled by Republicans. The 115th Congress (current) is also controlled by Republicans. I think it is disingenuous to accuse the Democrats of not doing anything when they are not the party in power. They are trying, but there is simply no chance that a Republican Congress is going to allow an legalization bill to be heard.

              The Democrats did have the Presidency, and the former President did what he could. But even that has been rescinded under the current President.

              1. "the former President did what he could."

                Not really. He did more than the current president, but he did far from all that he could do. Under the Controlled Substances Act, it is possible to administratively reschedule drugs, which Obama did not attempt to do for marijuana.

                1. Fair point, if true (I'm not that familiar with the nuances of the CSA).

  9. Of course it goes against the spirit of federalism. So does the EPA, the FDA, and most of the "Regulatory State".

  10. So what is the practical effect when combined with the continued Congressional prohibition on spending money to enforce the law in states that have legalized for at least medical purposes?

  11. "Ideally, Congress would reform federal drug laws to facilitate state experimentation while also protecting states in which prohibition is maintained from any excesses of their neighbors. (Note to members of Congress poised to criticize AG Sessions: Why don't you do your job and push legislation to address this issue?)"

    This. I do not blame Sessions for enforcing federal law. Other than drugs that cause true externalities (PCP anyone?), congress should amend the controlled substances act to remove them.

  12. The only way to prod Congress to do their job and reform federal drug laws is to threaten vigorous enforcement. Absent vigorous enforcement, Congress gets the benefit of reform, without taking the political risk. Why would they ever actually act when they get the benefit for free? Even worse, Congress can talk out of both sides of their mouth and do nothing. The DOJ should enforce the law as written, and Congress should change the law if their constituents are unhappy.

    1. Also, I want to be clear: I an pro pot legalization, but also anti-ignoring-the-law. There is a right way and wrong way to do things, and using "prosecutorial discretion" to alleviate Congress only encourages Congress to write laws that may or may not be enforced depending on the weather forecast.

    2. Valid argument. Unfortunately.

    3. First, does anyone believe that Sessions' intent is to cause Congress to repeal the CSA? He's an avowed drug warrior.

      Second, Sessions is not proposing to vigorously enforce the CSA. It's already vigorously enforced. It's been vigorously enforced for forty years. Half of the federal prisoners are in there due to CSA enforcement. There has been no cessation of vigorous enforcement of the CSA.

    4. You are spot on.

    5. Strict enforcement doesn't bring change. Strict enforcement is the status quo. More likely is it will be the growing number of states legalizing pot that will eventually get congress to act. My guess would be that it may be as long as ten years out, but when I think of how quickly most of the nation spun around on gay marriage, it may be much sooner (though the pessimist in me still screams "a decade").

  13. Federalism by Executive Order isn't really federalism. I'd prefer the EO be rescinded and then States sue on federalist principles against the federal law instead. Make the changes permanent, not temporary.

    1. Raich is a huge fly in the ointment. How does one get around that when challenging a marijuana law? Seems like Congressional action is the only way out.

      1. Simple: Take it to court again. & again, & again, & again. It's what keeps lawyers in biz. Get injunctions. Any lawyer who can't tie up a matter in court for life should take up another hobby.

        One angle: "This is not what Congress meant by `marijuana'." Get an expert to testify that the product that exists today by that name & description is different from what was around at that time. The plants have mutated, or whatever.

        1. Why not press for Congress to change the law? Why instead go through these contortions?

          1. "Take it to court again. & again, & again, & again. It's what keeps lawyers in biz."

  14. "largely eschew enforcement of federal marijuana laws against those acting in compliance with applicable state laws"

    Unless, of course, it's related to firearms, in which case even medical marijuana use renders one a federally prohibited person.

    This brings up the question as to why there's a federal background check, rather than state-based.

    1. Because it would be easy to cross state lines to purchase firearms?

      1. Like it is to purchase marijuana?

  15. Seems like much ado about nothing. It's not the memos that led to the acquittal of the Kettle Falls 5, and the Rohrbacher-Farr amendment is still in place.

    1. The amendment only applies to medical marijuana (I think), and the Kettle Falls 5 went to jail (except the one who was terminal). Their acquittal on some of the charges isn't even the end of federal prosecution in Eastern Washington.

      1. You are behind the times on the Kettle Falls 5 (there's an article on Hit and Run about their convictions being vacated).

        But right on the scope of the amendment being limited to medical marijuana. So the withdrawal of the memo might have some effect.

        1. I'm happy to be wrong about Kettle Falls 5. They don't belong in jail.

        2. "You are behind the times on the Kettle Falls 5 (there's an article on Hit and Run about their convictions being vacated)."

          You apparently didn't read the whole article. The convictions were vacated without prejudice.

          The government will be free to refile the charges against them if the Rohrbacher-Farr amendment is repealed before the statute of limitations runs out.

          1. No, I did. It's one of the reasons I stressed the importance of the Rohrbacher-Farr amendment rather than some guidance memos.

          2. Purely as an academic exercise, it would be interesting to see that happen. Under 'the fruit of the poisoned tree,' wouldn't all evidence from the previous effort be excluded?

            That would mean an entirely new investigation to obtain currently existing evidence unrelated to contemporaneous evidence collected while it was illegal to expend funds to do so.

  16. Establishing a habit of allowing the executive to selectively ignore entire laws has a much worse effect on the health of the government system.

    1. I agree, if you want to legalize marijuana then you need to get Congress to pass a bill changing the law and have the President sign it. States do not have the power to "legalize" something that is prohibited under federal law ? all they can do under the Tenth Amendment is refuse to use their own resources to enforce that law which still leaves the door open for prosecution at the federal level.

  17. I personally think drug laws are stupid and tyrannical, but at this point, I'll support any action that targets traditionally Democrat Party voters.

  18. Cory Gardner is threatening to hold up Trump's nominees to the DOJ until Sessions reverses himself. Maybe he could be more productive and threaten to introduce legislation repealing the federal ban on marijuana.

    1. Sen. Gardner appears to know his Republican colleagues better than you do, my footlong friend.

      The authoritarian drug warriors will be leashed by Democrats, not Republicans.

      1. "The authoritarian drug warriors will be leashed by Democrats, not Republicans."

        It's highly unlikely that they will be leashed by anyone in the next several decades.

        1. The population that endorses drug warriors is dying off far more rapidly than that.

          Thank goodness.

      2. Call me when the Democrats actually sponsor a bill to leash the drug warriors. Until then, you are just blowing smoke.

        1. S.1689. What's your phone number?

          1. But I agree Sen. Gardner would have more credibility if he'd sign on as a co-sponsor immediately.

    2. That would require Cory Gardner to actually take ownership and responsibility for the policy change that he's tacitly supporting. I'm open to ending the federal criminalization of marijuana and kicking it back to the States but the only way to do that is to change federal law which means Congress passing a bill. So long as it remains a crime under federal law, then Jeff Sessions as Attorney General by enforcing the law is doing his job. If Cory Gardner doesn't like it, then he needs to do his by sponsoring and pushing through a bill that makes the change in law that wants to see made.

  19. I hadn't read that Alabama amicus brief before. I wish all elected officials were as forthright about situations where they agree with the policy, but dagnabbit it's still unconsitutional.

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

    It might take a few decades at worst but it never fails.

    1. First, there is doubt that Lincoln ever said this.

      Second, whether he said it or not, it's a terrible idea. How many lives are you willing to ruin, over decades in your view, to accomplish what common sense says could be accomplished in a day?

      "Marijuana prohibition laws are bad, therefore we should send a lot of people to jail for using marijuana. " Doesn't sound sensible to me.

  21. The federalism argument is as applicable for heroin as it is for marijuana. Do you think Justice should get out of enforcing heroin laws too,except for importation?

    1. Your question smacks a bit of the old "gay marriage leads to cats marrying gophers" fears. Are there any states with viable movements towards legalizing heroin? Is there any such movement? Regardless, if in fact the legalization of heroin somehow gained broad public support, which in turn lead to the legalization of heroin in a growing number of states, then yes, the federal approach to heroin should be re-examined and adjusted as necessary.

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