White House Press Secretary Sean Spicer has indicated the new Attorney General Jeff Sessions would enforce federal laws against marijuana use in states that have legalized it. This would be an appropriate and far less lawless course of action than President Obama embraced.
Maintaining the status quo of non-enforcement is tempting for many conservatives. It has the appearance of showing respect for the idea of federalism. For Republican members of Congress, it saves them from a tough vote on decriminalization where they risk alienating the growing number of voters who favor legalization as well as traditionalists who would like to see the laws maintained.
However, both of these are flawed reasons for inaction. First of all, true federalism is based on respect for the rights of states as laid out in the Constitution. It is evident President Obama has no such belief as later in his Presidency he decided the President of the United States is President of every school board in America. Also, let’s imagine a state (for whatever reason) were to legalize heroin or meth. Would government officials who have stood blithely by while marijuana laws have been ignored stop enforcing laws on hard drugs?
I believe the answer would be no. Marijuana is different from these harder drugs in its general public perception. However, it’s constitutionally no different. You can’t say the Tenth Amendment gives the states the right to legalize one drug but not others. If your position is that it’s okay for the States to allow some drugs the federal government has prohibited, but not okay for others, that’s not a Constitutional decision, it’s a legislative decision. President Obama’s decision to unilaterally act to suspend marijuana enforcement was fake federalism which actually usurped the power of the legislative branch.
Of course, in addition to Congress getting away with avoiding having to take a tough vote, the mostly left-leaning pot activists come out as winners. They get to take a “federalism for me but not for thee” approach to broader federalist concerns as they continue to argue for federal power and federal supremacy in areas that don’t involve pot usage.
The Obama Administration’s executive action served to short circuit serious conversations that Congress should have about the War on Drugs and federalism in general. The Justice Department should return to enforcing federal marijuana laws that are on the books rather than ignoring them. That will make Congress take up the hard issues they’ve been avoiding since 2013. At the same time, if Marijuana advocates want to challenge the federal action in court as an unconstitutional violation of the Tenth Amendment, they should go for it. I don’t think they’ll go far in federal court, and if they do, they may get a precedent that will allow for far more federalism and local control than they would prefer.
Such a process would be politically difficult, but it would be in keeping with our system of checks and balances which was not well-served by the Obama Administration’s usurpation of the prerogatives of the other branches of government.
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