STATES' RIGHTS: Congress, let the states set marijuana policy

Editorial: Congress, let the states set marijuana policy

Editorial Board

The momentum behind America’s marijuanamovement has been unstoppable. Illinois and 28 other states have legalized medical marijuana. Eight states now allow the sale of recreational pot; the latest is California, where proponents expect the recreational use market will become the world’s largest.

On Thursday, however, the movement ran into a big buzzkill, courtesy of Attorney General Jeff Sessions.

Sessions rescinded an Obama-era policy that discouraged federal prosecutors from pursuing marijuana-related charges in states where pot had been legalized. Sessions’ move effectively gives those prosecutors free rein to aggressively enforce the federal government’s prohibition of the use and sale of pot.

How the move plays out is anybody’s guess. Federal prosecutors could begin raiding marijuana dispensaries, and even go after users. Or they could follow Colorado U.S. Attorney Bob Troyer’s lead: He said Thursday he would make no changes to the way he handles marijuana cases in his state.

As a U.S. senator from Alabama, Sessions strongly opposed marijuana legalization. He equates the drug with heroin, has blamed pot for a rising tide of violence, and has said that medical use of marijuana has been “hyped, maybe too much.” It’s not even clear whether his views hew to those of his boss, President Donald Trump, who in a July 2016 interview said that, if elected, he would not advocate a federal crackdown on states that had legalized recreational marijuana sales. “I think it’s up to the states,” Trump said at the time.

What Sessions hopes to accomplish remains unclear. So far, the only effect he’s had is to sow a good deal of confusion. In states where recreational pot sales are legal, do sellers, buyers and users face arrest? Is the medical marijuana industry vulnerable? Would someone smoking pot as treatment face jail time?

There is indeed a disconnect between the federal ban on marijuana and the laws in states that allow its sale and use — whether for recreational or medical purposes. But there’s a way to bridge that gap. Congress should enact legislation that gives states the right to move ahead with recreational and/or medical marijuana laws if they choose. That would leave it up to each state and its voters to decide whether legalization works for them.

We mention voters specifically because they’re playing a role in liberalizing policy. Every state that allows recreational use got approval from voters first. And in many states that enacted medical marijuana laws, voters backed the measures through referendums.

In Illinois, a bill pending in the General Assembly would make it legal to smoke pot, as long as a user is 21 or over and possesses no more than an ounce. Driving under the influence of marijuana would still be illegal, as would smoking it in public. If Illinois lawmakers want to enact that or other marijuana proposals, they would benefit from a federal policy that clarifies, rather than confuses, what state governments can do.

Attorneys general may have strong pro or con personal views about pot, but their job isn’t to tailor enforcement priorities in ways that approach law-making. Members of Congress have put law enforcement in an awkward spot by looking away as states diverge from federal statute. Facts on the ground suggest that many Americans want to legalize medical and recreational use of marijuana. They should have the right to do so without wondering what the next U.S. attorney general will want.

http://www.chicagotribune.com/news/o...105-story.html

8 States Most Likely to Legalize Marijuana in 2018

IRS says pot is illegal — but you still have to pay taxes - CNBC.com

Jan 29, 2016 - Pot is illegal on the federal level, but the IRS code states, "Marijuana businesses are required to file federal income tax returns."


Study: Legal marijuana could generate more than $132 billion in federal tax revenue and 1 million jobs

Chicago Tribune
2 days ago


Legal Weed Could Create $50+ Billion in Federal Tax Revenue

Reason
1 day ago


Marijuana legalization could generate $132 billion in taxes by 2025: Study

Washington Times
1 day ago

HAMMER: Jeff Sessions Is Right to End Obama's Unlawful Approach to Marijuana Enforcement

Prosecutorial discretion does not extend this far.

https://www.dailywire.com/sites/defa...?itok=HM9cxw7OPAUL J. RICHARDS/AFP/Getty Images

ByJOSH HAMMER@josh_hammer

January 4, 2018

Today, U.S. Attorney General Jeff Sessions announced an intention to overturn an Obama-era Department of Justice (DOJ) enforcement policy with respect to marijuana:

Attorney General Jeff Sessions is expected to rescind an Obama-era policy that had paved the way for legalized marijuana to flourish in states across the country, prompting quick pushback Thursday from at least two Republican senators from states that allow its use after the plan was first reported by the Associated Press.

The Justice Department chief plans to leave the decision of how aggressively to enforce federal marijuana law up to federal prosecutors, two sources with knowledge of the plan told the AP.

Sessions is a well-known hardliner on drug issues, and I suspect my policy preference (shared by, e.g., Ted Cruz) that Congress amend the Controlled Substances Act of 1970 so as to remove marijuana as a Schedule I narcotic and entirely devolve the drug's regulation to the states is a normative position at loggerheads with Sessions' own.

But Jeff Sessions is absolutely correct to overturn this Obama-era DOJ enforcement policy. In so doing, he is vindicating the Supremacy Clause in Art. VI of the U.S. Constitution against those who would subvert it to an overly broad and misguided conception of the doctrine of prosecutorial discretion — a conception, incidentally, which happened to identically mirror the Obama Administration's proffered apologia for its defense of its lawless DACA and DAPA immigration edicts.

Let's start with some law.

The Supremacy Clause (Art. VI, cl. 2) of the U.S. Constitution, as originally promulgated and as survived through the John C. Calhoun-led 19th century nullification crisis, unambiguously establishes the supremacy of federal law over any countervailing state law.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Consequently, it is thus a legal truism that (justified!) conservative and libertarian concerns for federalism and respect for the 10th Amendment must be seen through this prism. Where Congress has legal authority, via its strictly enumerated powers, to speak, and where Congress has indeed spoken, the states may not explicitly countervail or override. Much of the conservative argument against "sanctuary city" policies rests on precisely these grounds.

At the same time, the basic federalism construct embedded in the U.S. Constitution indeed does establish dual spheres of positive sovereignty as between the federal and state governments. (Normative sovereignty in our system of governance, by contrast, rests, as the Preamble to the U.S. Constitution makes clear, with "We the People.") It is not an exaggeration to call this unique American application of the subsidiarity principle the most distinct contribution the Founders made to the Western political theory canon; whereas the Frenchman Montesquieu had laid the foundation for a tripartite separation of powers construct as among the legislative, executive, and judicial branches, it was James Madison and his fellow Framers who birthed the concept of true federalism. And liberty-minded patriots are all the better for it.

Under this idea of dual spheres of sovereignty, a state (such as Colorado) may indeed pass legislation to legalize marijuana within its jurisdiction. But here, "legalize" only means that the state will not expend any state resources to prosecute or police the underlying conduct. Crucially, because of the Supremacy Clause, the state cannot "nullify" or actively hinder DOJ's enforcement of duly enacted federal law. Again, when conservatives rail against "sanctuary city" policies under which local and state law enforcement agents actively block Immigration and Customs Enforcement officers from doing their jobs, they are making this precise point.

Enter the Obama Administration. The Obama-era DOJ, over and over again, famously took an exceptionally broad view of prosecutorial discretion. They did so with the DACA immigration edict of 2012. They did so with the DAPA immigration edict of 2014. And they did so here, in the context of marijuana enforcement, by effectively issuing a top-down departmental order precluding DOJ enforcement of the Controlled Substances Act, with respect to marijuana. In doing so, the Obama-era DOJ made it easier for the states to justify their own state law experiments with marijuana legalization.

Here is the problem. As every first-year law student taking criminal law learns, prosecutorial discretion is a wholly legitimate doctrine. It is simply true that a given prosecutor's office is seldom (if ever) capable of prosecuting (as a purely fiscal matter) every single possible crime falling under his geographic jurisdiction, and over which he has legal jurisdiction. Federal and state prosecutors thus make ad hoc, case-by-case assessments as to prosecutorial priorities each and every day.

But this traditional, and more modest, view of the doctrine of prosecutorial discretion is at irreconcilable odds with the Obama-era conception of prosecutorial discretion, which paved the way for wholesale rewritings of underlying law — a task that incontrovertibly falls to the Congress, under the Vesting Clause of Art. I of the U.S. Constitution. The Constitution's basic tripartite separation of powers construct was thus breached. I made this point this morning as part of an extended Twitter dialogue with my good friend (and fellow Daily Wire contributor) Elliott Hamilton:

4 Jan
https://pbs.twimg.com/profile_images...ldu_normal.jpgElliott Hamilton
✔@ElliottRHams

Replying to @josh_hammer
I don’t believe prosecutorial discretion counters the power of the Supremacy Clause since the former doesn’t operate on the premise that those laws don’t exist. PD is necessary to prioritize which individual cases are worth pursuing given a lack of resources.

https://pbs.twimg.com/profile_images...PoQ_normal.jpgJosh Hammer
✔@josh_hammer

Your conception of prosecutorial discretion is overly broad and is precisely what Democrats and Obama apologists argued with respect to DACA and DAPA. If you are comfortable with that, fine, but be intellectually honest and consistent.
10:19 AM - Jan 4, 2018

• 
  

4 Jan
https://pbs.twimg.com/profile_images...ldu_normal.jpgElliott Hamilton
✔@ElliottRHams

Replying to @josh_hammer
I think the *use* of such discretion has been abused to cover for lawlessness (e.g., executive issuance of permits under DACA/DAPA) but the concept of prosecutorial discretion remains the same. It’s a necessary tool for prosecutors who lack unlimited resources.

https://pbs.twimg.com/profile_images...PoQ_normal.jpgJosh Hammer
✔@josh_hammer


Yes, at the individual prosecutorial level, on a case-by-case assessment. Not via wholesale top-down departmental rewriting so broad so as to effectuate a change in federal policy.
10:25 AM - Jan 4, 2018

• 
  

Conservatives properly rejected — in unapologetic and quite emphatic fashion — this Obama-era conception of the prosecutorial discretion doctrine during the DACA and DAPA public debates. As I wrote at RedState at the time, in the immediate aftermath of Obama's DAPA ukase, I viewed the unilateral DAPA amnesty and breaching of our national sovereignty as such an unforgivable sin so as to clearly fall under the Constitution's prescribed "high Crimes and Misdemeanors" criterion establishing the grounds for presidential impeachment:

This offense falls squarely within the original meaning of the Constitution’s language of limiting presidential impeachment to “treason, bribery, or other high Crimes and Misdemeanors." In Federalist No. 65, Alexander Hamilton describes the jurisdiction of impeachment proceedings as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” And in a 1989 law review article, the esteemed Judge Frank Easterbrook defines the scope of Congress’s impeachment power as being intended for mere constitutional violations.

As constitutional law professor (and my good friend and fellow Texan) Josh Blackman blogged extensively about and testified before Congress about at the time, the President of the United States' solemn duties under the Take Care Clause of Art. II of the Constitution ("[The President] shall take Care that the Laws be faithfully executed ...") necessarily exists to guard against precisely the theory of prosecutorial discretion that the Obama Administration repeatedly invoked. Here is the way that Blackman and his fellow libertarian-leaning legal eagles Ilya Shapiro and Randy Barnett put it in a 2016 U.S. Supreme Court amicus brief (emphasis added):

To put this in constitutional terms, courts should ask whether the president is acting within the realm of prosecutorial discretion that Congress contemplated when it enacted the statute. If the answer is yes, the deviation from the law is in good faith, and is thus permissible. However, if the departure from the law is “used to recapture opportunities forgone upon contracting” — to accomplish ends rejected by Congress — then the action is not in good faith. When the president bypasses a statute by relying on a claim to authority Congress withheld from him, this is evidence that the president is violating his constitutional duty...Motivation is therefore the factor that distinguishes genuine prosecutorial discretion from a pretextual usurpation.

This is spot-on legal analysis, and it is wholly applicable to Attorney General Sessions' action today to rescind the Obama-era DOJ prosecutorial discretion policy with respect to marijuana. The Controlled Substances Act is entering its 48th year of existence; if Congress wanted to remove marijuana as a regulated Schedule I narcotic under the statute, it could plainly have already done so. That Congress has not done so does not mean that the President of the United States — with his "pen" and his "phone," as Obama famously put it — may unilaterally do so. And with respect to prosecutorial discretion, Sessions' move actually restores a proper view of the doctrine: As the Politico piece initially quoted here says, "The Justice Department chief plans to leave the decision of how aggressively to enforce federal marijuana law up to federal prosecutors." Indeed, that is precisely how prosecutorial discretion has always worked, and how it ought to always work.

Good for Jeff Sessions.

https://www.dailywire.com/news/25389...h-josh-hammer#

The federal government wants to take your guns and ammo