For the last few years under Barack Obama, states-rights and federalism advocates have lost in almost every context except one: enforcement of marijuana laws. Cannabis remains classified as a Schedule 1 substance with the DEA, in the same category as LSD, Ecstasy, peyote, and heroin as having “no currently accepted medical use and a high potential for abuse.” As states legalized both medicinal and recreational use of marijuana, though, the Obama administration’s Department of Justice declined to enforce federal law in those jurisdictions.
Now, however, there’s a new sheriff in town, and some on Capitol Hill wonder whether Jeff Sessions intends to return to full enforcement. A group of Senators — mostly Democrats, and mostly from pot-friendly states — wrote an open letter to the new Attorney General to request that he continue current laissez-faire policies:
In a letter delivered to Attorney General Jeff Sessions on Thursday, Sens. Elizabeth Warren, D-Mass., and Lisa Murkowski, R-Alaska, asked the Department of Justice to uphold the Obama administration’s policy allowing individual states to determine their own pot laws.
“We respectfully request that you uphold DOJ’s existing policy regarding states that have implemented strong and effective regulations for recreational marijuana use,” the senators wrote in the letter. “It is critical that states continue to implement these laws.”
The letter was cosigned by Sens. Cory Booker, D-N.J.; Patty Murray, D-Wash.; Maria Cantwell, D-Wash.; Ron Wyden, D-Ore.; Jeff Merkley, D-Ore.; Ed Markey, D-Mass.; Brian Schatz, D-Hawaii; Catherine Cortez Masto, D-Nev.; and Michael Bennet, D-Colo. — all Democrats and most from states where marijuana is legal.
First off, let’s point out a basic hypocrisy here. Some of these same Democrats asking Sessions to work with them to protect access to marijuana called for his resignation the day before. In fact, nearly all of them did: Warren, Schatz, Merkley, Wyden, Markey, Booker, and Cortez Masto all demanded that Sessions quit his job. Of the Democratic signatories, only Cantwell and Murray apparently refrained from that demand, although Cantwell did say Sessions would be “unfit to serve” if collusion with Russians could be proven … which is a mighty big if, and a hypothetical for which no evidence at all exists. If Sessions is so unfit now, why are Democrats asking him to set policy in their favor now?
Now they “respectfully request” that Sessions keep the current policy. Riiiiiiiiiiiiiight.
Regardless, Sessions has made it known that he’s not all that interested in reasserting federal primacy for marijuana issues, according to Politico:
Sessions provided some private assurances to senators before he was confirmed that he was not considering a major shift in enforcement, despite his opposition to the use of marijuana.
“He told me he would have some respect for states’ right on these things. And so I’ll be very unhappy if the federal government decides to go into Colorado and Washington and all of these places. And that’s not the [what] my interpretation of my conversation with him was. That this wasn’t his intention,” said Sen. Rand Paul (R-Ky.). in an interview.
And since he was confirmed, Sen. Cory Gardner (R-Colo.) said administration officials have left him with the impression there is no big policy change coming.
“Nothing at this point has changed,” Gardner said.
There’s more than a whiff of play-acting here, or more to the point, buck-passing. Congress could act at any time to remove marijuana from Schedule 1 to a lower status that would allow for some legal use under federal law. Will any of these signatories introduce a bill to do that rather than beg the Attorney General not to enforce current law, especially an AG that they have demanded resign? If not, why not? Democrats don’t have the majority in either chamber, but Murkowski is a Republican and could work to get such a bill time in committee and a floor vote.
The buck-passing applies to Sessions too, to an extent. Rather than simply ignore the law for political purposes, he could recommend that the DEA reschedule marijuana so that the Department of Justice can enforce the law properly. However, Sessions only just got there, and the signatories on this letter have hardly allowed him to get to work yet. This criticism applies much more strongly to the people who began this averted-eyeballs policy: Barack Obama, Eric Holder, and Loretta Lynch. If they didn’t want to enforce the Schedule 1 prohibitions on marijuana, then they should have changed its status first rather than leave everyone in limbo, and set precedents for the rule of whim to overcome the rule of law.
Sessions has long supported federalism and state sovereignty, so his tacit acquiescence doesn’t stand anywhere near as far out of character as it does with the Democrats who signed this letter, or for that matter, the Democrats who started this hypocritical policy in the first place. In the long run, it’s probably the correct policy. But if that’s the case, then change the law to match the policy rather than ignore the existing law because it’s inconvenient. Having senior legislators demanding the latter rather than taking ownership of the former makes a mockery of the rule of law, and of the principle of co-equal branches.