A Possible Victory for Federalism and Marijuana Legalization

Donald Trump's deal with Senator Cory Gardner could pave the way for the effective elimination of the federal law banning marijuana in those states that have legalized pot under state law.


A cannabis plant.

Earlier today, President Donald Trump apparently cut a deal with Colorado Republican Senator Cory Gardner that could lead to the effective end of federal marijuana prohibition throughout much of the country. In January, Attorney General Jeff Sessions ended an Obama-era policy that limited federal prosecution of marijuana user and distributors in states that have legalized pot under their own state laws. In retaliation, Gardner, who represents the first state that legalized recreational marijuana, held up Trump Administration nominees for Justice Department posts in order to pressure Sessions into reversing his decision. As reported by the Washington Post, Trump and Gardner have apparently made an agreement under which Gardner will let the nominations proceed and the administration will refrain from prosecuting marijuana sellers and users whose activities are legal under state law, and support legislation barring such enforcement permanently. As Gardner put it in a press release, "President Trump has assured me that he will support a federalism-based legislative solution to fix this states' rights issue once and for all."

This latter part of the deal is particularly important. If federal marijuana prosecutions in states that have legalized marijuana are banned by congressional legislation, the issue will no longer be a matter of executive discretion. At least when it comes to these states' marijuana markets, it would no longer matter much whether the attorney general is a committed drug warrior like Sessions or a more moderate figure.

Nine states and the District of Columbia have legalized recreational marijuana, and many more states that have legalized medical marijuana. States that have legalized recreational marijuana in recent years include such major jurisdictions as California, Colorado, Washington, and Massachusetts. Those figures are likely to keep growing, given recent trends in public opinion.

Allowing states to go their own way on marijuana legalization would be a major boost to efforts to curtail the War on Drugs, which inflicts enormous harm on American society. It would also be an important step towards limiting the scope of federal power, thereby making it easier for red and blue states to coexist in an era of severe polarization.

But celebration may yet turn out to be premature. Trump has a history of unreliabiility and it is not yet clear whether he will uphold his end of the bargain with Gardner. As Democratic Senator Ron Wyden (a supporter of marijuana legalization) put it on Twitter, this could be "another episode of @realDonaldTrump telling somebody whatever they want to hear, only to change directions later on." Jeff Sessions and other drug war hardliners in the administration might yet undermine the deal, just as anti-immigration hardliners in the White House scuttled Trump's seeming agreement to various deals on DACA. The War on Drugs is less central to Trump's political brand than opposition to immigration. During the 2016 campaign, Trump even indicated that marijuana legalization is an issue that should be left up to the states. On the other hand, a harsh federal marijuana policy would be consistent with Trump's broader "tough on crime" stance, and with his plans to ramp up the War on Drugs in other areas.

Even if Trump does not back out, it is not yet certain that Gardner's proposed legislation can get through Congress. It is highly likely that it could win a majority vote in both the Senate and House, given the support of the overwhelming majority of Democrats, and a good many Republicans. But it is at least questionable whether it can secure the support of a majority of the House GOP caucus. If it does not, lame-duck House Speaker Paul Ryan might apply the so-called "Hastert Rule," under which legislation cannot come to a vote unless it has the backing of a majority of the majority party—not just a majority of the House as a whole.

Nonetheless, today's developments are at least grounds for cautious optimism for legalization advocates. The fact that Trump is even seriously considering ending federal marijuana prohibition in a large part of the country is a step in the right direction.

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  1. “On the other hand, a harsh federal marijuana policy would be consistent with Trump’s broader “tough on crime” stance, and with his plans to ramp up the War on Drugs in other areas.”

    This doesn’t necessarily hold, does it? I would expect “tough on crime” will have a higher support if people didn’t think much of the toughness is on something other than crime. So, narrowing the subject to easier-to-argue crimes could actually help the crime warrior.

    1. Seems odd that how “tough” one is on crime would have any cx to which acts one would have as crimes.

  2. High time.

    1. But would the bill get out of the joint committee of Congress?

      1. It might take a token vote.

      2. It’s time for Congress to sh!t or get off the pot.

    2. pun intended???

  3. Oh, goody, more “recreational” drugs.

    1. Many kinds of recreation are unhealthy. Which kinds should we go after with guns and prisons?

      1. Whichever is more profitable to the prison-industrial complex.

  4. Would this be constitutional under the 14th amendment? If someone tokes up on Colorado, their free of federal charges. If someone tokes up in New York, their in trouble with the feds.

    1. Doesn’t the ATF already distinguish between states depending on local laws?

      1. The BATFE does not distinguish anything, anywhere.

        1. They distinguish themselves as storm troopers/moralists and woe to those who disagree.

  5. If Pres. Trump curbs drug warriors, he should be commended for it.

  6. Tennessee is on the record that state resources will not be used to aid enforcement of a federal gun law that violates Article I Section 26 of the Tennessee State Constitution (nor any of the rights protected under Article I, Declaration of Rights).

    Do those who support state defiance of the War on Drugs also support state defiance of the War on Guns? (Other than libertarians.)

    1. Yeah, I do (and so to lots of non-libertarians). I think states should be laboratories. If Tenn. wants to try this, they it should be able to.

      You’re also making a good argument against *forcing* states to have reciprocal gun rights. If Tenn wants to allow Gun X, it should be allowed to do so. And of course, if Mississippi wants to ban that same gun, it should be allowed to do so. And of course Miss. should not have Tenn’s decision shoved down it’s throat. Same for open carry laws, concealed carry laws, etc. (The above does not apply, naturally, if Miss and Tenn mutually decide to recognize each other’s gun laws–gambling laws, pot laws, etc.)

      I think most people agree with me: “If your states wants to allow an easy right to concealed carry, then God bless you. I hope it turns out that crime will be reduced. But I believe in States’ rights way too much to allow your concealed carry decision to force my own state to recognize your states’ approach to carry permits. As long as you do not insist that your rights, in your own state, will be automatically transferred to my state–when you visit–then we’ll get along just fine.” 🙂

      You’d be surprised at how many purported states rights advocates actually want to force other states to recognize gun rights that hold in a different state. That seems to be the main sticking point…at least in my very limited experience.

      1. sigh…”its” and not it’s. I *hate* hate hate the lack of an edit button.

      2. Sigh. I am sad you picked a constitutional right for your example. No state can recognize or not recognize an infringement of the constitution.
        How we go through this again with say, a gay marriage license? (oops, same issue with the constitution)
        How about occupational licenses? There you go – – – –

        1. I think it’s ridiculous to start with the premise that owning a gun is a constitutional right (no argument from me) and lead to a conclusion that this right cannot be limited in some ways. Concealed carry being an excellent example.

          You’re free to argue that the Second Amendment guarantees a right to concealed carry (And, therefore, any state banning or limiting this right is violating the Constitution). But I do not find it persuasive, and no court–that I know of–has found it persuasive.

          On the other hand; I do not follow gun legislation carefully at all, so if you do have contrary case law to cite to, I’m more than willing to own up, if I end up being wrong on this point.

          1. No, what’s ridiculous is to start from the premise that owning and CARRYING (bear means “to carry”) a gun is a Constitutional right and that states can limit such right to people who have discretionary permits granted only if some government bureaucrat decides you “need” it.

  7. Cory Gardner is an idiot, and one of my Senators until 2020.

    Anyone who believes anything that Trump promises to do in the future will actually happen is also an idiot.

    1. Jason,
      1. Yes, agreed that he is sort of a dope (pun intended)
      2. I cut him some slack here. If Trump lies (I give it a 50% chance that he is lying, or that he’ll flip-flop for the 150th time in his presidency), then Gardner can again hold up future nominees. So, Gardner still have some politic strength. This is why Trump gets my very generous 1/2 chance of living up to his word. If not, then the spineless Trump might intend to honor his word. Which would last until he next spoke to Sessions or any of the other drug warriors…upon which Trump would cave in faster than he can pay off a mistress.

  8. Just to be clear the “deal” does not remove the illegality when it comes to people applying for federal jobs, especially those requiring a security clearance. If a Colorado user answers the application truthfully (s)he does not get the clearance . If (s)he lies and is caught when a background investigation is done, (s)he is subject to federal criminal charges and in any case does not get the job.

    When legalization advocates do not inform young people about the issue, they are not being completely honest.

    1. There’s a vague promise of a bill.

      I’ll believe it when I see it, of course, but if there *is* a bill, then we may as well assume (why not?) that it will deal with the government-employment issue. I mean, if we’re willing to believe a bill will pass at all, it takes no greater a leap of faith to imagine it will allow some flexibility of hiring tokers or ex-tokers.

      1. It also does not remove the federal ban on gun sales to, or gun possession by, current users of marijuana.
        It does not countermand the 26 Sep 2011 ATF letter to FFL holders (legal gun dealers) that they are to deny gun sales to anyone presenting a medical marijuana card as proof of residence. Ex-tokers can buy guns if they can prove they no longer hold a MMJ card and swear their toking was in their past. We need to do like Hawaii and add current MMJ card holders to the instant background check database..

        Repeal restrictions on pot heads? Have you ever seen “Reefer Madness”? Those people are worse than NRA members.

    2. “Just to be clear the “deal” does not remove the illegality…”

      Since the article doens’t seem to link to any text for this alleged deal, how can you possibly know what is and isn’t covered/removed by this “deal”.

  9. Here’s a crazy idea.
    Our buddy Trump can direct jolly Jeff Sessions to follow the law and take marijuana off the schedule one drug list because it has proven medicinal use.
    Oh, wait. That would put a bunch of federal busy bodies out on the street.

    1. I do not think Jeff Sessions has *any* gatekeeper role re keeping pot as Schedule One, does he? Can any Atty General really sign something and thereby remove pot? If it were as easy as that, one would have thought that Prez Obama would have directed his own AG to do so, no?

      1. “If it were as easy as that, one would have thought …”

        Far, far from my area of expertise, but The Font of All Knowledge seems to imply that someone who runs the DEA, HHS, and FDA could make it happen in a straightforward manner.

        My guess would be that Obama (and Bill Clinton) didn’t go there because they thought the political costs outweighed the benefits. Heck, that’s probably true of Bush Jr. as well.

      2. Yes, that power is statutorily vested in the att’y gen’l.

        1. Robert,
          Interesting. Do you have a cite for this?

          It seems that, now that pot has become much more acceptable, the next Dem prez will appoint an AG who will remove pot from Schedule One. Then, 4/8 years later, a conservative prez could appoint an AG who would reclassify it back to S. One. Then, another Dem prez is elected. Etc etc. I could see that sort of whipsawing back-and-forth, which would throw into chaos actual research, pot-related businesses, etc.

          Interesting. (And depressing.)

  10. This was an easy way for Trump to stick a finger in the eye of AG Jeff Sessions as payback for his recusing himself from the Russia investigation. Trump will never get over Sessions doing that. NEVER.

  11. I have hardly been the Trump administration’s biggest fan. But I have tended to go lighter on them on drug and immigration matters than others. The fact of the matter is the federal laws on the books in both areas are draconian. In calling for vigorous enforcement of these laws, Sessions is merely doing what Congress mandated to its maximum extent. The Trump administration isn’t obligated to continue previous administrations’ leniencies. And the constitutionality of these laws has been upheld many times.

    One can hardly fault a president for “tak[ing] care that the laws be faithfully executed.” And this is so for the laws one doesn’t like, not just the laws one likes. There are many aspects of the Trump administration that threaten ethical norms and constitutional duties. I think one shouldn’t muddle what may well become a genuine constitutional crisis by blaming the President for policies and enforcement actions that involve simply doing what Congress calls for and the courts permit, however deeply one may disagree with those laws as a policy matter.

  12. A “victory for federalism”? If it passes it will certainly be a victory for cannabis legalization. I get the impression though, that a lot of cannabis advocates aren’t all that enthusiastic about other aspects of federalism. Maybe I’m wrong, and I hope I am.

  13. Saya akan percaya ketika saya melihatnya, tentu saja, tetapi jika ada * adalah * tagihan, maka kita mungkin juga berasumsi (mengapa tidak?) Bahwa itu akan berurusan dengan masalah pekerjaan pemerintah. Maksud saya, jika kita mau percaya bahwa tagihan akan diluluskan sama sekali, tidak diperlukan lompatan iman yang lebih besar untuk membayangkan itu akan memungkinkan beberapa fleksibilitas dari menyewa para tokter atau mantan tokonya.

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