Noth­ing con­sti­tu­tional about feds’ mar­i­juana crack­down

Honolulu Star-Advertiser - - VIEWS & VOICES - JA­COB SULLUM Ja­cob Sullum is a se­nior edi­tor at Rea­son mag­a­zine and a columnist with the Cre­ators Syn­di­cate.

Be­fore last week Thurs­day, state-li­censed mar­i­juana mer­chants op­er­ated in a highly un­cer­tain le­gal environment, sub­ject to the whims of fed­eral pros­e­cu­tors who could at any mo­ment de­cide to shut them down, take their prop­erty, and send them to prison. Now that At­tor­ney Gen­eral Jeff Ses­sions has clar­i­fied the Jus­tice Depart­ment’s pol­icy re­gard­ing the cannabis in­dus­try, state-li­censed mar­i­juana mer­chants op­er­ate in a highly un­cer­tain le­gal environment, sub­ject to the whims of fed­eral pros­e­cu­tors who could at any mo­ment de­cide to shut them down, take their prop­erty, and send them to prison.

Ses­sions calls this “a re­turn to the rule of law.” The de­scrip­tion is du­bi­ous, not only be­cause the sit­u­a­tion for state-le­gal mar­i­juana grow­ers and dis­trib­u­tors is fun­da­men­tally un­changed but also be­cause the cannabis crack­down threat­ened by Ses­sions of­fends a ba­sic prin­ci­ple of con­sti­tu­tional law: The fed­eral gov­ern­ment may not ex­er­cise pow­ers it was never granted.

U.S. at­tor­neys pros­e­cute a mi­nus­cule per­cent­age of mar­i­juana vi­o­la­tions, and they have very broad dis­cre­tion to de­cide which ones are worth their time. Ses­sions re­scinded Jus­tice Depart­ment guide­lines that said a vi­o­la­tor’s com­pli­ance with state law was one fac­tor pros­e­cu­tors should con­sider.

The rea­son­ing, as ex­plained in a 2013 memo from James Cole, then the deputy at­tor­ney gen­eral, was that state-reg­u­lated mar­i­juana busi­nesses are less likely to im­pinge on “fed­eral en­force­ment pri­or­i­ties” such as stop­ping in­ter­state smug­gling and sales to mi­nors. Cole did not tell U.S. at­tor­neys to leave state-le­gal canna-busi­nesses alone, but since 2013 they gen­er­ally have.

It’s not clear whether Ses­sions’ memo will change that. Ses­sions called the mar­i­juana-spe­cific guide­lines “un­nec­es­sary” and said pros­e­cu­tors should be guided by “the Depart­ment’s well-es­tab­lished gen­eral prin­ci­ples.” Last week the in­terim U.S. at­tor­neys in Colorado and the South­ern District of Cal­i­for­nia, both Ses­sions ap­pointees, said they would con­tinue as be­fore.

But given Ses­sions’ well­known op­po­si­tion to mar­i­juana le­gal­iza­tion, his memo was widely seen as por­tend­ing more ag­gres­sive en­force­ment of the fed­eral ban.

That prospect pro­voked bi­par­ti­san crit­i­cism from state of­fi­cials and mem­bers of Congress, unit­ing Democrats who sup­port drug pol­icy re­form with Repub­li­cans who sup­port fed­er­al­ism.

Ses­sions’ boss counts him­self in the lat­ter group, and he has re­peat­edly ap­plied the prin­ci­ple of state au­ton­omy to mar­i­juana. In July 2016, for in­stance, a TV re­porter in Colorado Springs asked Don­ald Trump what he thought about us­ing fed­eral power to shut down the state-au­tho­rized cannabis in­dus­try in states such as Colorado.

“I wouldn’t do that, no,” Trump replied. “I’m a states per­son. I think it should be up to the states, ab­so­lutely.”

That po­si­tion is broadly pop­u­lar. Last sum­mer, a Quin­nip­iac Univer­sity poll found that 75 per­cent of Amer­i­cans, in­clud­ing 59 per­cent of Repub­li­cans, op­posed “en­forc­ing fed­eral laws against mar­i­juana” in the 29 states that “have al­ready le­gal­ized med­i­cal or re­cre­ational mar­i­juana.”

Re­frain­ing from such in­ter­fer­ence also hap­pens to be what the Con­sti­tu­tion re­quires. Un­der the 10th Amend­ment, “the pow­ers not del­e­gated to the United States by the Con­sti­tu­tion, nor pro­hib­ited by it to the states, are re­served to the states re­spec­tively, or to the peo­ple.”

Un­like al­co­hol pro­hi­bi­tion, the na­tional mar­i­juana ban was never au­tho­rized by a con­sti­tu­tional amend­ment. Its pur­ported le­git­i­macy in­stead re­lies on read­ing the power to reg­u­late in­ter­state com­merce so broadly that it ac­com­mo­dates nearly any­thing Congress wants to do.

In 2005 the Supreme

Court said the Com­merce Clause cov­ers ev­ery last speck of cannabis in the coun­try, even if it never crosses state lines, down to the plant in a can­cer pa­tient’s closet or the bag of buds in her night­stand. “If Congress can reg­u­late this un­der the Com­merce Clause,” noted dis­sent­ing Jus­tice Clarence Thomas, “then it can reg­u­late vir­tu­ally any­thing — and the Fed­eral Gov­ern­ment is no longer one of lim­ited and enu­mer­ated pow­ers.”

Repub­li­can crit­ics of Ses­sions’ mar­i­juana memo echo Thomas’s con­cerns about an over­reach­ing fed­eral gov­ern­ment. If they join forces with le­gal­iza­tion-friendly Democrats, they can pass a bill that pro­tects canna-busi­nesses from DOJ ha­rass­ment and chal­lenges the pres­i­dent to act on his avowed sup­port for the 10th Amend­ment.

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