Early this year, U.S. Attorney General Jeff Sessions announced a plan to rescind an Obama-era policy that de-prioritized federal prosecution of marijuana laws in states that have legalized cannabis. At the time, I said the announcement gave Sessions another opportunity to rail against pot, but that it would have virtually no practical effect.
I was right.
During the National Conference of State Legislatures 2018 Legislative Summit in Los Angeles, California, on July 31, Vanderbilt University law professor Robert Mikos explained why Sessions can’t and won’t crack down on marijuana.
In the first place, Congress has tied Sessions’ hands, at least with respect to medical marijuana.
In every budget since 2014, Congress has included a provision barring the Department of Justice (DOJ) from spending any funds for the prosecution of medical marijuana users or suppliers who are in compliance with state law. Even if Sessions wanted to crack down on medicinal cannabis, he couldn’t due to a lack of authorized funding.
But Mikos pointed out Sessions faces an even more significant limitation. The DOJ doesn’t have the personnel or resources for a widespread crackdown on weed.
“The agency simply doesn’t have the spare resources that would be needed to mount an effective campaign against today’s marijuana industry.”
Mikos said even without enforcement guidance that ties prosecutors’ hands or congressional spending restrictions, “There’s really not much the DOJ could do at this point to put the cat back in the bag.”
“So, while this particular development – the rescission [of the Obama era guidance] – didn’t necessarily make your jobs any easier, didn’t make it easier for you to pursue reforms, I don’t think it’s actually made it harder either.”
Miko also said the recent Supreme Court decision in Murphy v. NCAA will take legal pressure off states that have legalized cannabis. The opinion was a rare and major win for the Tenth Amendment.
The Court’s opinion was rare in that it not only struck down a federal law that infringed on the reserved powers of the states, but also expanded on the long-standing anti-commandeering doctrine. In a nutshell, the Court held a state cannot be required to prohibit sports betting just federal law does.
As Mikos put it:
“The anti-commandeering rule empowers the states to legalize an activity, for purposes of state law, even when Congress forbids the same activity.”
While the SCOTUS decision specifically addressed sports betting, it logically extends to the legalization of marijuana. Mikos said the decision should end federal lawsuits challenging state cannabis legalization efforts claiming federal law preempts state laws.
The wheels have completely come off federal marijuana prohibition. The federal government does not have the personnel or resources to enforce it, even Jeff Sessions wants to. And it’s becoming increasingly clear many in the federal machine have lost not only the ability, but also the will to prosecute this unconstitutional war on a plant. Former drug warriors in D.C. are even jumping on the cannabis bandwagon, with the likes of John Boehner and Chuck Schumer suddenly advocating for marijuana legalization.
This was all made possible because states simply ignored the feds and legalized marijuana without permission from D.C. Most importantly, it was the will of the people that drove this change. People demanded marijuana legalization and supported the idea by simply ignoring the law long before states took any kind of legislative action. The lesson: you are far more likely to change D.C. by changing Sacramento, or Baton Rouge or Albany than you are by direct action inside the Beltway.
You can watch the National Conference of State Legislators forum on marijuana policy HERE.