March 9, 2018

Leave Pot Policy to the People: States Don’t Need Jeff Sessions’ Help

States are more than capable of making their own decisions about drug laws.

By Peter Roff / 01.12.2018

During the 2016 campaign, Donald Trump said on more than one occasion that marijuana policy should be left up to the states which, during the Obama years, was kind of the way things were done. Operating off the terms of “the Cole memo” – a document named for the former U.S. deputy attorney general who authored it – prosecutions in states where partial or full decriminalization had taken effect were to be handled with the utmost care if they were to be pursued at all.

That was then. Now United States Attorney General Jeff Sessions, who seems to have a tin ear when it comes to what Trump has to say, announced last week a change in departmental policy regarding the prosecution of marijuana crimes. He’s rescinded the Cole memo and, in its place, ordered the prosecution of crimes involving the possession, production and consumption of marijuana to the full extent of federal law.

Now it’s important the law be followed. Federal law is what it is, but some states – notably Colorado, where the voters opted to use their franchise to make marijuana legal – see things differently, leading many to ask which law is it that should be obeyed?

Critics of the new policy point to both the 9th and 10th Amendments of the Bill of Rights as justification for Colorado and the other states that have legalized marijuana for everything from medical purposes to recreational consumption to prevail in the case of a disagreement with the federal government. The Constitution does not explicitly grant the federal government the authority to make drug policy and so, from the perspective of those who consider themselves strict constructionists, it’s something that should be left to the states.

This does not make it a matter of “states’ rights” versus the federal government. That’s a phrase good conservatives and people who love liberty should drop from their lexicon for many reasons, including its odious history as the justification for so much that is bad. States have powers, states have authority, and states have responsibilities as individual entities and as members of the union we call “The United States,” but only people have rights.

There are, of course, practical concerns connected to the new policy. Neal Levine, the chairman of the New Federalism Fund, a group critical of Sessions’ new initiative, said in a statement that “Going after the state legal and regulated cannabis industry would not only damage the economies and undermine public safety in the states that have opted out of federal cannabis prohibition, it would also export all of our legal cannabis jobs to Canada and other countries.”

These are legitimate concerns, but one must be careful not to accept or reject policy based purely on commercial considerations. The larger argument, the one about who has the authority to make policy in this area, is in many ways more important than what should happen to a person who lights up a joint in a public. Remember, it is the people of the state of Colorado who decriminalized marijuana by voting to do so and, under the doctrine of popular sovereignty, that matters.

The attorney general’s new policy flies in the face of what the people of Colorado chose to do, something four members of the state’s delegation to the U.S. House of Representatives pointed out in a letter to Sessions protesting his decision to nullify the Cole memo:

We represent a state that posed the question of marijuana legalization to its voters not once, but twice. Voters first approved the use of medical marijuana and subsequently, our constituents approved its use for adult recreational use. The citizens of Colorado have spoken on this issue. We believe we are obliged to heed their decision. Further, all the laws and regulations put in place governing the use of marijuana in our state clearly restrict it to a matter internal to the state of Colorado.

A fifth member of the delegation, Republican U.S. Sen. Cory Gardner, has promised to block the confirmation of any additional Trump appointees to positions inside the U.S. Department of Justice until Sessions is either made to heel or a compromise can be worked out.

Gardner may have a long wait, as Sessions is known as something of an immovable object on things he considers matters of principle. One possible solution would be for Congress to pass a bipartisan measure introduced by California Republican Tom McClintock and Colorado Democrat Jared Polis that would prohibit the Justice Department from using tax dollars to prosecute anyone for marijuana crimes anywhere it has been made legal by the state legislature or by a vote of the people.

It comes down to this: Either we either trust the people or we don’t. One need not like a policy outcome to acknowledge that a principle exists that, carried to its full extent, means something will be made legal that might just best be left on the list of prohibited substances or – to put it another way – being pro-federalism doesn’t make you pro pot. We are a self-governing people capable of making our own decisions about the course our lives and our laws will take, subject to the protections accorded us in the U.S. Constitution.

Originally published by U.S. News & World Report with permission.