On Legal Marijuana, Congress Should Stay Sessions? Hand

Buds are removed from a container at the "Oregon's Finest" medical marijuana dispensary in Portland, Oregon April 8, 2014. Over 20 Oregon cities and counties are moving to temporarily ban medical marijuana dispensaries ahead of a May deadline, reflecting a divide between liberal Portland and more conservative rural areas wary about allowing medical weed. Portland, Oregon's largest city, already has a number of medical marijuana clinics and has not moved to ban them. Picture taken April 8, 2014. REUTERS/Steve Dipaola (UNITED STATES - Tags: DRUGS SOCIETY POLITICS HEALTH) - RTR3KMHE

The Trump administration has stayed relatively quiet on the subject of state measures to legalize recreational marijuana. However, recent statements from Press Secretary Sean Spicer and Attorney General Jeff Sessions would suggest a change in tone from candidate Trump?s earlier statement that he?d be willing to let states chart their own course on marijuana policy. Although such a change in policy will likely prove ineffective, the uncertainty it creates only goes to highlight the necessity of congressional action to give states the necessary leeway to pursue their own reforms without relying on executive indulgence.

Since the passage of California?s Proposition 215 in 1996, some 28 states have legalized medical use of marijuana, and eight have passed full legalization, with half of that number coming in the last election. While those eight states passed their reforms at the ballot box, a number of other states are considering legalization bills in the current legislative session. Naturally, this change in the legal landscape has accompanied a shift in public opinion. According to Gallup, support for legalization has gone from about 25 percent in 1995, the year before Proposition 215, to 60 percent late last year.

All of this has occurred with varying degrees of forbearance on the part of the federal government. The Clinton and Bush administrations pursued fairly aggressive policies toward dispensaries and even patients in medical marijuana states, and the Obama administration continued the trend. Then, in 2013, the Obama DOJ issued the Cole memo, which instructed federal authorities to lay off those who were in compliance with state law. This relative d?tente has held up to the present. In fact, this approach of ad hoc federalism enjoys solid public support. A Quinnipiac poll from February found 71 percent of Americans opposed federal enforcement of prohibition in states that have legalized, and even among Republicans that figure stood at 55 percent to 36 percent against.

Of course, this shift from the long-dominant prohibitionist orthodoxy hasn?t been without controversy. In 2011, just after legalization passed in Colorado and Washington, Hillary Clinton maintained that there was ?too much money? in black market marijuana for it to be legalized, and Ed Feulner, former president of the Heritage Foundation and member of Trump?s transition team, just this past fall called for a re-declaration of the War on Drugs, explicitly including marijuana. In that piece he singled out data from Colorado showing increases in ?marijuana related? emergency room visits and hospitalizations, as well as ?pot-positive? traffic fatalities. However, as detailed in a report?by the Colorado Department of Public Safety in March 2016, the data don?t lead so readily to alarmist conclusions. In fact, Colorado?s own governor, John Hickenlooper, has gone from musing about undoing legalization if only he had a magic wand to guarded optimism.

Despite the ominous statements from administration officials, Trump himself apparently struck a more accommodating tone in a meeting with state governors in late February. Even though he made no explicit mention of marijuana, he signaled a willingness to let states pursue their own policies without fear of federal interference. Given the impossibility of policing a combined population of 70 million in the states that have legalized with the roughly 5,000 special agents of the DEA, it would seem like an easy call for the administration to prioritize investigations of otherwise violent traffickers over hounding commercial growers and retailers complying with state law. Furthermore, letting legalization run its course in the states might be one of the best ways to undercut the black market. In an NPR report from 2014, one Mexican grower they interviewed reported that the wholesale price per kilo had fallen by more than half, and, per the Washington Post, overall seizures at the border had fallen from 4 million pounds in 2009 to 1.5 million in 2015.

The current disconnect between federal marijuana policy and the ongoing reforms at the state level is untenable. Rather than revert to the tried and failed prohibitionist approach, it?s time for Congress to codify the current ad hoc federalism of Obama?s second term and give the states and their burgeoning marijuana industries the breathing room they need. In so doing, they will sap the strength of the cartels, create jobs, and allow law enforcement to turn its attention to more important work.

Dan Spragens is a criminal justice reform intern at Reason Foundation.

5 ways Donald Trump could block legal marijuana in California

Buds are removed from a container at the "Oregon's Finest" medical marijuana dispensary in Portland, Oregon April 8, 2014. Over 20 Oregon cities and counties are moving to temporarily ban medical marijuana dispensaries ahead of a May deadline, reflecting a divide between liberal Portland and more conservative rural areas wary about allowing medical weed. Portland, Oregon's largest city, already has a number of medical marijuana clinics and has not moved to ban them. Picture taken April 8, 2014. REUTERS/Steve Dipaola (UNITED STATES - Tags: DRUGS SOCIETY POLITICS HEALTH) - RTR3KMHE

The Trump administration has made clear that it will not look the other way when it comes to de facto state legalization of marijuana, as the Obama administration did. Instead, White House press secretary Sean Spicer last week said the states that have approved the use of recreational pot ??California is one of eight ??would face a reckoning because marijuana use remains a federal crime under the Controlled Substances Act.

State Democrats immediately denounced the possibility of a federal crackdown and took a defiant tone, starting with Lt. Gov. Gavin Newsom, a key sponsor of Proposition 64, the ballot measure approved with 56 percent support in November that sets up the framework for legal pot sales and use beginning Jan. 1, 2018. Newsom released a letter that called Spicer ?grossly uninformed? for saying legal pot could make the opioid epidemic worse and warned that a federal intervention would help ?drug cartels and criminals? by keeping the sale of marijuana a black-market, illegal practice.

Xavier Becerra, recently installed as state attorney general, also vowed in a statement that he would ?protect the interests of California? from federal intrusion.

A Los Angeles Times report quoted attorneys as saying California could argue that it has a legal right to control drug rules within its borders.

Constitution gives federal government final say

But legal websites and U.S. history suggest that a federal government that is determined to enforce federal laws would be a very difficult obstacle for a state to overcome.

?The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the ?supreme law of the land,?? the FindLaw website notes. ?This means that judges in every state must follow the Constitution, laws and treatises of the federal government in matters which are directly or indirectly within the government?s control. Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict.?

A federal crackdown could come in several forms:

  1. Drug Enforcement Administration agents could stage raids on pot farms and dispensaries, as they did memorably in 2012 at Oakland?s massive Oaksterdam medical pot outlet. U.S. marshals and IRS agents joined in the raid.
  2. Federal authorities could warn property owners that their land and buildings would be seized unless they evict pot farmers or dispensaries.
  3. The federal government can compel cooperation through a lawsuit. An Associated Press analysis noted that this is what happened in 2010, when a federal suit forced Arizona to scrap an immigration law that the Justice Department said trampled on federal authority.
  4. The federal courts can also compel action, such as what happened last year in Kentucky, when a county clerk who objected to issuing licenses for same-sex marriage was overruled.
  5. The Treasury, Justice and Homeland Security Departments can all use existing laws to hammer banks and credit unions that accept deposits that can be linked in any way to marijuana-generated funds or if they provide any services to dispensaries. ?Financial institutions face significant risk for violating federal law if they offer banking services to marijuana-related businesses,? an American Bankers Association web page warns. ?The federal statutory barriers include the Controlled Substance Act, USA Patriot Act, Bank Secrecy Act, Racketeer Influenced and Corrupt Organizations Act and other federal statutes.? The RICO law in particular gives law enforcement wide latitude to classify activities that may seem in a gray area as illegal, which is why it?s long been a target of advocates of legal reform.

These five ways the Trump administration could crack down on a state attempting to legalize recreational drug use are only the short list. In an era in which sweeping executive orders have become the norm, Attorney General Jeff Sessions ??an ardent foe of legal pot ??could ask President Trump to withhold federal funds for law enforcement or health programs from defiant states.

While Spicer was emphatic about a new federal approach to state marijuana laws, he offered no timetables for action. Sessions has so far focused on other issues in his first weeks at the Justice Department.

This piece was originally published by CalWatchdog.com