Jeff Sessions Can’t End Legal Pot & Here’s Why

The U.S. Department of Justice is not going to stop the sale of marijuana where legal. I repeat: This is not going to happen, not in a lasting meaningful way. Yes, individuals might be convicted, but a terrible decision to rescind the Obama-era rule allowing legalization to flourish is not a wholesale rollback of legal weed around the country.

If you believe that, you believe the federal government has far more power than it has, and you don’t have much faith in democracy or the U.S. Constitution. This is not to say there won’t be hurdles to overcome, but is to say the federal government cannot slow the pace of progress.

Let me start from the beginning.

The Associated Press broke the news Thursday, reporting that U.S. Attorney General Jeff Sessions is getting ready to cancel a policy from the previous administration that relaxed federal drug law enforcement. Under this rule, states moved quickly from decriminalization to legalization. California is the latest. Legal sales began there Jan. 1.

Before you rend your clothes and gnash your teeth, consider this, also from the Associated Press: Even as Sessions is formally eliminating the Obama-era rule, he is taking steps to “let federal prosecutors where pot is legal decide how aggressively to enforce federal marijuana law.”

What does this suggest? That Sessions is getting what he wants: a federal government upholding the appearance of zero tolerance, while not doing much about it. (This is not Trump’s position; his is unclear.) Sessions is delegating the hard work to locally based federal prosecutors who may or may not act, and while they have the power, they won’t be quick to use that power, because using it would contravene the democratic will.

  Remember that most laws are not federal. They are state laws. The Constitution enumerates a short list of powers for the U.S. government while delegating the rest. The founders balanced centralized power against state sovereignty and the right to self-government. States are where most policy innovation comes from, not the federal government. When it comes to policy innovation, the states are ahead of the feds.

There are limits to this. For a long time, the Bill of Rights did not apply to states. They could discriminate against (black) residents, and there was not much anyone could do to stop it. That’s when civil rights advocates turned to the federal government, first to the U.S. Supreme Court and then the U.S. Congress. For a long time, from the Gilded Age to the end of the Vietnam War, progressivism’s center of gravity was Washington.

For the last four decades or so, that center of gravity has increasingly grown diffuse as conservatives consolidated control of Washington and the federal courts. In recent years, progressives have turned less to the courts and more to elected bodies in states and big cities, pushing single issues like gay marriage, minimum wage increases, gun control and marijuana legalization. This grassroots approach is not only practical. It’s in keeping with the American tradition. Top-down progress is good, but not as good, or as lasting, as progress from the bottom up.

Legalization is the product of democratic deliberation or popular referendum, so locally based federal prosecutors are keenly aware they must proceed with caution if they proceed at all. Yes, U.S. attorneys are appointed by a president with a penchant for authoritarianism. Someone somewhere might be arrested for breaking federal law. In the event that happens, that will set federal power face-to-face with state sovereignty and the people’s will. Given 40 years of conservative jurisprudence, odds are the feds lose an embarrassing and easily avoided fight.

Sessions’ decision may about optics more than policy, but even the optics are problematic. His decision stands against surveys showing most Americans don’t think pot is worse than alcohol. As the Washington Monthly’s Gilad Edelman noted, Trump is now tied to a very unpopular position.

But it reflects something else. The Republican Party has run out of ideas. It used to stand for limited government. But now, instead of being opposed to Big Government, Trump and the Republicans are embracing it, as long as Big Government cracks down on things conservatives don’t like, such as reproductive rights, undocumented immigrants and pot.

Some argue that Obama’s policy was a half-measure. It did not go far enough in changing America’s absurd drug laws. That might be true, but it’s also true that his “hands off” policy gave states the time and space to move ahead in ways preferable to residents of those states. That’s slow painful progress but it’s progress with staying power.

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