A customer shops for marijuana at the MedMen store in West Hollywood, Calif., January 2, 2018. (Reuters photo: Lucy Nicholson)

But not by executive action

This morning, Twitter sparked to life with the news that Attorney General Jeff Sessions intends to rescind multiple memoranda which effectively made it Justice Department policy not to enforce federal bans on the sale and distribution of marijuana in states that have legalized the drug, so long as those states properly regulated its sale and distribution.


The most famous of these memos was authored in 2013, by then–deputy attorney general James Cole. It expressed the Obama DOJ’s desire that states “prevent diversion of marijuana outside the regulated system,” prohibit access to marijuana by minors, and replace the “illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.” If these conditions were met, Cole’s policy promised, the Department of Justice would exercise its so-called “prosecutorial discretion” to leave the growing “legal” marijuana industry alone, despite the fact that it exists in direct defiance of applicable federal law.

Sessions’s new policy rescinds the Cole Memo and four other similar memos “effective immediately.” It states that from now on prosecutors “should follow the well-established principles that govern all federal prosecutions” in deciding whether to go after the marijuana industry in states where it has been legalized. Contrary to Huffington Post spin, this isn’t a “crackdown.” It’s a restoration of the rule of law and the end of yet another unconstitutional Obama policy that privileged executive power over the American constitutional structure.


It’s also a policy that Congress and the president should quickly override through new legislation. The time has come to decriminalize marijuana.

During the latter part of his administration, President Obama time and again used memoranda and other extra-legal means to try to change federal law. Moving beyond drug enforcement, Obama took significant independent action pertaining to immigration and civil rights. For example, his administration defied the will of Congress on immigration, granting lawful presence to DREAMers and the parents of lawful residents (DACA and DAPA), and dramatically expanded the scope of Title VII and Title IX to extend protections on the basis of sexual orientation and gender identity.


Obama often justified his unconstitutional actions by claiming that Congress “failed to act.” What he meant is that Congress failed to do what he wanted. Yet there is no clause in the Constitution that grants the president the authority to disregard the separation of powers to achieve progressive policy goals.

Unfortunately even members of Congress sometimes inadequately defend the legislative branch’s constitutional prerogatives. This morning, Colorado Republican senator Cory Gardner declared that Sessions had contradicted personal assurances made before his confirmation and “trampled on the will of the voters in [Colorado] and other states.” No, senator, this is exactly wrong. Congress banned the cultivation, distribution, and sale of marijuana nationwide. Thus it is Congress that tramples on the will of Colorado voters. It is Congress that is violating federalist principles in law enforcement.

It’s time to do the right thing the right, constitutional way.


Gardner is positioned exactly where he needs to be to reform America’s drug laws. As a senator, he could introduce or co-sponsor legislation that explicitly decriminalizes marijuana at the federal level and leaves marijuana laws to the states. And there are multiple powerful arguments he could make in support of such a bill.


First, there’s the federalist argument. In a polarized and divided nation, respecting self-governance and state sovereignty becomes more important, not less. So long as state governments respect fundamental constitutional rights, let California be California and let Colorado be Colorado. As a resident of Tennessee, I’m happy to observe the results of their social, legal, and cultural experiments from a distance.

Second, in a nation with a massive prison population that’s so often torn apart by controversy over police shootings and alleged violations of civil rights, it’s important to look for creative ways to decrease police/civilian interactions and lessen government regulation of private behavior. Simply put, we need fewer criminal statutes and fewer prisoners. No one should believe that marijuana decriminalization will make a material difference in mass incarceration (it won’t), but observing places like California and Colorado will teach us whether we can make a modest start without harming public safety.

Finally, it’s important to know whether marijuana actually possesses meaningful medicinal benefits. Our nation is in the grips of an opioid crisis caused in large part by over-prescription of extraordinarily addictive and potent narcotics. In some instances, marijuana could potentially replace harder and more dangerous drugs. Serious scientific study of that potential is warranted, and Congress should make it easier for doctors to conduct such study.


Gardner and other marijuana-sympathetic senators like Rand Paul and Cory Booker should seize this political moment. Republican congressman Tom Garrett Jr. introduced legislation in the House last year that would remove marijuana from Schedule I of the controlled-substances list. National support for legalization is at an all-time high (64 percent, as of late October 2017), and by getting on board, GOP legislators could reach out to new constituencies — young and minority voters — at the same time that they protect civil liberties and advance federalism.

Don’t blame Jeff Sessions for enforcing the law. Instead, write new legislation, pass it through Congress, and put a bill on the president’s desk. It’s time to do the right thing the right, constitutional way.

READ MORE:

Marijuana Is a Gateway Drug to Federalism

A Bar Argument for Legalizing Marijuana

PHOTO GALLERY: Buying Pot in California