Last week, Attorney General Sessions rescinded an Obama administration policy under which the Department of Justice did not target law enforcement efforts against marijuana cultivation, distribution, or use that is permissible in the states in which it occurred—either for medical or recreational purposes. Critics denounced the policy change on three grounds: (1) It contradicted statements made by then-candidate Trump during the 2016 campaign and assurances given by then-Senator Sessions in connection with his confirmation proceedings; (2) there are more important law enforcement priorities than marijuana; and (3) the new policy contradicts principles of federalism.
The first two criticisms are sound. The third may not be. As I shall explain, in this context at least, federalism has little force independent of the underlying policy considerations.
The Trump/Sessions About-Face
Federal law has long forbidden possession and distribution of marijuana. As various states legalized or decriminalized marijuana in recent years, joint state-federal enforcement became problematic. Consequently, the Obama administration mostly left state-legal marijuana alone, focusing federal attention instead on such matters as distribution to minors, distribution by drug gangs and cartels, distribution from states that had legalized marijuana to those that had not, and the production and distribution of more serious drugs. That policy was set forth in a series of memoranda, including the so-called Cole memo of 2013.
Last week’s announcement rescinds the Cole memo and related Obama administration guidance documents. It leaves to the discretion of individual Justice Department lawyers the decision whether and when to bring federal prosecutions for state-legal marijuana. Although the Sessions memo states that federal prosecutors should exercise such discretion in accordance with resource constraints, it also approvingly cites “Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime,” without making any allowances for state legalization. Under the Sessions memo, state-legal medical and recreational marijuana are fair game for federal prosecutors.
Thus, the claim by White House spokesperson Sarah Huckabee Sanders that the Sessions memo reflects no change from prior assurances given by Trump was plainly false. Campaigning in Colorado, where recreational marijuana is legal under state law, Trump said he would leave the matter to the states. The Sessions memo, which Sanders said Trump approves, does not do that.
Meanwhile, Colorado Republican Senator Cory Gardner recounted last week that he was given a personal assurance by Sessions that the federal marijuana policy would not change if he were confirmed as Attorney General.
Accordingly, the Sessions policy can be fairly criticized on the ground that it breaks promises.
Strict Marijuana Enforcement is Bad Policy
The new Trump/Sessions approach can also be criticized as unsound policy.
Whether marijuana should be legal for medical or recreational use is a contested question. Despite providing some short-term relief, marijuana is not generally recommended to treat glaucoma. However, it has some medical benefits as well as risks for cancer patients. Claims have been made, with varying degrees of evidence, for marijuana’s efficacy in treating numerous other conditions as well.
Whether recreational marijuana should be legal poses different tradeoffs. The majority of Americans who support legalization probably regard its personal health risks as closer to those of legal drugs such as tobacco and alcohol than to “hard” drugs like heroin and cocaine. In addition, support for marijuana legalization may rest on the worry that including marijuana in the war on drugs has harmful effects reminiscent of the period of Prohibition of alcohol.
The Sessions memo does not purport to resolve the underlying policy questions. Instead, it accepts the congressional judgment that marijuana should be illegal.
That makes superficial sense. After all, if Americans want to legalize medical or recreational marijuana, they can urge their Representatives and Senators in Washington to change the law. Unless and until Congress acts, however, the job of the executive branch is to enforce the law as written. Right?
Not entirely. In a justly famous 1940 speech, then-Attorney General (and later Supreme Court Justice) Robert Jackson said “law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.” Jackson went on to say that in setting priorities a prosecutor should select for prosecution those cases “in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”
The Sessions memo recognizes the inevitability of prosecutorial discretion but suggests that it can be dissolved by the congressional judgment to retain the criminal prohibition on marijuana. Yet the same thing could be said about every federal crime. Jackson’s point was that the prosecutor must pick and choose which offenses to prioritize from among those that the legislature has defined. The retention on the books of federal marijuana laws cannot, by itself, justify a decision to commit Justice Department resources to marijuana enforcement efforts.
Indeed, Congress itself has affirmatively indicated its opposition to aggressive federal marijuana enforcement efforts in appropriation bills passed since 2014 that forbid the expenditure of federal resources on such efforts in states that have legalized medical marijuana. To be sure, that limit does not restrict federal prosecution of recreational marijuana in California, Colorado, and the other states that have legalized recreational marijuana. And should Congress fail to include the limit in future spending bills, the Justice Department would be authorized to prosecute medical marijuana as well. However, the fact that Congress has heretofore restricted such prosecutions undercuts the argument that the mere fact of continued criminalization bespeaks a commitment by Congress to prioritize marijuana enforcement.
On the contrary, the best explanation for the new Sessions policy is that Sessions is a drug warrior who thinks federal law enforcement resources should be targeted at people who cultivate, distribute, or use marijuana for any purpose. The new policy reflects his enforcement priorities and, implicitly, Trump’s. People who take a different policy view are thus entitled to direct their ire at the Trump/Sessions Justice Department.
The Mostly Misguided Federalism Objection
Many critics of the Sessions policy also argue that it violates principles of federalism or, as it is sometimes called, states’ rights. This objection is mostly misguided.
In the 2005 case of Gonzales v. Raich, the Supreme Court rejected a federalism challenge to federal marijuana enforcement in California, which, at the time, had legalized only medical marijuana. Citing a New-Deal-era case upholding congressional authority to regulate intrastate wheat production on the ground that there is a national market for wheat, the Court found that the national market for marijuana likewise brings California-grown-and-consumed marijuana within the power of Congress to regulate interstate commerce.
Some of the Sessions critics argue that, as George Mason University law professor Ilya Somin put the point last week, “Raich is a terrible decision that principled conservatives—and others who care about enforcing constitutional limits on government power—should be trying to overrule.”
Perhaps that position 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. I share Professor Somin’s distaste for the Sessions policy, but as conservatives endlessly remind liberals, a law or policy is not unconstitutional just because it reflects bad, stupid, or even counterproductive policy.
So much for the constitutional federalism objection. Now consider a milder federalism objection.
Wise administration of federal criminal law requires a balance between centralized control from Washington and sensitivity to what Jackson described in his 1940 speech as “local sentiment and opinion.” Where such sentiment and opinion, as reflected in state law, accepts medical or recreational marijuana use, one argument goes, federal prosecutors should back off.
That view is sound as far as it goes, but it does not go as far as one might initially think. If a problem truly calls for a vigorous national response, then federal prosecutors should be prepared to override local sentiment and opinion.
For many years, local sentiment in many states disfavored prosecuting white people for committing crimes, including lynchings, against African Americans. Should that have counted as a reason for forbearing from prosecutions under federal civil rights laws? One should think the exact opposite—that the failure of the states to take seriously, or worse, their participation in, outrageous crimes justifies a special focus of federal resources on those crimes.
Now readers will say that there is a big difference between marijuana use and lynching—and indeed there is. But the difference is one of policy. The judgment that the Justice Department should not be expending resources on marijuana enforcement in states where it is legal relies on the view that marijuana offenses are not serious offenses. That is not a point about federalism.
Jeff Sessions and Donald Trump deserve the scorn heaped on them for changing federal marijuana enforcement policy. They deserve it because they broke their promises. They deserve it because the policy they plan to pursue grossly misdirects scarce resources. But the federalism objection is a red herring. Two jeers, not three, for this policy change.