A week ago Attorney General Jeff Sessions rescinded the 2013 Cole memo, which directed U.S. attorneys to limit federal enforcement of the Controlled Substances Act (CSA) in states with legalized recreational marijuana.
“It is the mission of the Department of Justice to enforce the laws of the United States,” Sessions said, “and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission.”
The attorney general has a point. The CSA designates marijuana as a Schedule I drug, making it illegal to possess and distribute.
Prosecutorial discretion has its place in law enforcement — not ticketing a person for speeding on the way to the hospital, for example — but to not enforce federal law over large jurisdictions seems more like dereliction of duty. The purpose of the executive branch of government is to enforce laws passed by the legislature. The administration cannot pick and choose what laws it enforces. Imagine the outrage if the administration directed the EPA or the IRS to enforce laws selectively.
The problem is that state and federal laws conflict in the eight states that allow recreational use and the more than two dozen states that authorize medical marijuana. Since 2014 Congress has annually adopted an amendment to spending legislation to prohibit the Justice Department from interfering with state medical marijuana laws. In a sense, federal law conflicts with federal law.
Rather than directing the Justice Department to selectively implement drug laws, Congress should amend the CSA to declassify marijuana as a Schedule I drug. State law should determine whether it is legal to possess, sell and consume marijuana. A change in the federal law would harmonize state and federal enforcement, better reflect changes in public opinion regarding marijuana, enable more scientific inquiry into the plant’s potential therapeutic properties, and take a small step towards restoring federalism.
One need not be a fan of marijuana to recognize that it is not in the same league as heroin, peyote, LSD and the other Schedule I substances deemed to have a high potential for abuse and no accepted medical use. Presumably the 64 percent of Americans who believe marijuana should be legal, according to a recent Gallup poll, have come around to that point of view.
Legalization has its benefits, including economic development and increased tax revenue. It’s made it easier for farmers to cultivate hemp, marijuana’s non-mind-altering cousin, which has a variety of commercial and industrial uses. Legalization has also increased research into potential medical uses for marijuana’s non-psychoactive compounds.
Legalization also has its costs; let’s be honest. Following legalization, there has been a rise in marijuana-related traffic deaths, more emergency room visits for children and pets that ingest marijuana, and an increase in use by pregnant women. How many 22-year-old underemployed young men would be able to make healthier life choices if they weren’t lined up at the pot shop?
Weighing the costs and benefits of marijuana legalization and mitigating the harms is something that state and local government can do. In fact, it’s their responsibility under a federalist system designed by the nation’s founders to divide governing responsibility and keep it as accessible and accountable to the people as possible.
“The powers delegated by the proposed Constitution to the federal government are few and defined,” wrote James Madison. “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Marijuana policy is one such object that should be determined by the state.
Consternation over the revocation of the Cole memo might be causing more Americans to question the oversized power of the federal government and to yearn for local control. That would be a good thing. Marijuana could be the gateway drug to federalism’s return.
Krista Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer
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