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Sessions Returns to Rule of Law on Marijuana

| January 5, 2018

Attorney General Jeff Sessions terminated Erick Holder’s previous decision to allow states to ignore federal marijuana laws. Right on Crime Director, Dr. Derek Cohen, went on air with WMAL 105.9, Mornings on the Mall, to dismantle the assumption that Sessions’ move is an attack on state’s rights. WMAL’s Vince Coglianese and Mary Walter kicked off the conversation with questions of what Sessions’ reversal meant. “It’s not so much of a reversal, it’s more of a return to the rule of law,” Cohen said. Federal prosecutors now have the go ahead to pursue cases in which marijuana use breaks federal law. This does not necessarily mean that states with legalized medical marijuana should be on the lookout for federal prosecutors at the door. Instead, it means legitimate traffickers should recognize that states where marijuana is legal are no longer safe spaces for breaking federal law.

Listen to the entire interview here or read the transcription below.

Vince – What does this all mean to you – the reversal?

Derek – It’s not so much of a reversal, it’s more of a return to the rule of law.  The original sin in this law goes back to 2005 in Gonzalez v Raich where the Supreme Court essentially read the commerce clause, which has already been over-broadened in Wickard v Filburn, saying that the federal government has the ability to regulate INTRAstate use of illegal drugs under the Controlled Substances Act. That created a lot of confusion. And the Holder Justice Department then authored a memo, the Cole Memo as it’s known, basically saying, “Look if the states that have legalized this are causing confusion with federal prosecutors, let’s just not go ahead and prosecute unless it’s an actual case of per say criminal activity with the cartels or gangs, or whatever the case may be… However, you can’t just selectively decide what laws you want to prosecute, and that’s why Attorney General Sessions went ahead and reversed it

Vince – …I kind of buy a lot of the arguments that the pro-marijuana crowd has made, especially whether it’s about addiction or getting this out of the hands of the cartels… the more you legitimize it the more you can draw tax revenue out of it… that said, you may think that, but if you want it to change it needs to change at the federal level. Right? Meaning the law has to change.

Derek – Correct. This cannot be done simply through executive fiat or Supreme Court jurisprudence… It has to be done legislatively. This is the whole issue with the pen and the phone agenda of the Obama Administration, is that we need simply need something of more legal permanence, and that only exists with legislative change.

Mary – What about the idea of state’s rights? You know, this idea that the state of California, the citizens of California, they voted for this. This is what they wanted for their state. Where does that come into play here…

Derek– That is correct, and I actually couldn’t agree with that point more. Simply put, though, if we look at the decisions in Wickard, and then in Raich We have an amelioration of the 10th Amendment, an amelioration of state’s rights going forward. Now… that’s not to say that completely neuters the state’s rights argument, (but) the problem is that standing law has basically vested Congress with the authority to regulate this, and outside of any change in jurisprudence– let’s say another case going before the Supreme Court and the decision going another way—or congressional change… We’re basically stuck with what we have. So, the issue of state’s rights is important, but the attack on state’s rights happened back in 1942 in Wickard – and in 2005 in Raich.

Vince – We saw Colorado Senator Cory Gardner going hard on Jeff Sessions yesterday… very upset about this, threatening to hold various nominations within the Senate… You look at a guy like Cory Gardner who wants to see this changed. Why wouldn’t a guy like him just present legislation in the Senate?

Derek – Vince, I have to ask the same thing myself…. It’s easy to hold up confirmations, but you almost have to take it as balancing act. Is it more important to make a show by, what is essentially, weakening the effectiveness of government by having it understaffed, or is it smarter to go ahead and file that legislation? Now it could be that we don’t see the icebergs beneath the surface, such as an initiative like this won’t actually get floor time. That may very well be the case, but the thing is you actually have to attempt the legislative process before you can start this sort of tactic.
Vince – I mean look. 29 states in the United States currently have legal medical marijuana. You would think that’s enough of a groundswell to get a coalition of senators and representatives to actually back a piece of legislation. But I guess, apparently, the U.S. Congress doesn’t have a stomach for something like that.

Derek – It’s not that it just doesn’t have the stomach, I think it’s more deference to atavistic law. The actual legalization of marijuana as a policy matter is still an open debate, and I think there’s correct points on both sides. But at the very least I think we can all agree that basically regulating an entire industry, regulating it through a budgetary games such as not appropriating money for the enforcement of federal marijuana laws or doing away it through games of prosecutorial discretion, which is essentially what Holder did and Sessions reversed, that’s not the way we can get any sort of stability or understanding in our law. I can understand the U.S. Attorneys, especially the ones in Colorado, who had to make a statement yesterday that would be confusing

Vince – You mentioned prosecutorial discretion. Holder took prosecutorial discretion away from prosecutors. He said don’t pursue this. Sessions restored it and said, “Look you can pursue this – if it’s within your discretion.

Derek – Exactly, and we see that in a lot of decisions that Attorney General Jeff Sessions has made – with civil asset forfeiture, with mandatory minimums – these are still open policy questions. But what he has returned the Department of Justice to enforcing the law as written. And I don’t think anyone on the Conservative side can be against that.

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