Attorney General Sessions Aims to Crack Down on States that Legalized Marijuana By Daniel Tagliarina
On January 4, the Justice Department, under Attorney General Jeff Sessions, announced a change in policy aimed at curtailing marijuana use in states that have previously legalized the drug’s use. Sessions rescinded Obama-era guidance to federal prosecutors that discouraged prosecution for violating federal marijuana laws in states that had legalized marijuana.
This guidance emerged in response to both Colorado and Washington State voting to legalize recreational marijuana use in 2013. Rather than set off a power struggle between states and the federal government, the Justice Department issued the guidance discouraging federal prosecutions in states that legalized marijuana. This opened the path for additional states to follow suit without fear of reprisals.
Currently, 8 states and the District of Columbia have voted to allow both recreational and medical marijuana usage. Six of these states—Alaska, California, Colorado, Nevada, Oregon, and Washington—have created infrastructure to allow the sale of marijuana, while the other two states—Maine and Massachusetts—along with D.C., have not yet created policies allowing the legal sale of marijuana. In addition, 21 other states have passed laws allowing for the legal use of medical marijuana.
Despite these various state-level efforts at legalization, marijuana use has remained illegal under federal law. Due to the Supremacy Clause in the federal constitution, and the principle of federal preemption, the federal law has remained the law of the land on regarding the legality of marijuana. Thus, the question is not whether Sessions and the Department of Justice are allowed to change the Obama-era guidance, or whether the states can supersede federal law. These are answered questions, decidedly on the side of the federal government. The real questions, however, are about the political costs and ramifications of these changes.
Helen H. Richardson/Denver Post
Senator Cory Gardner, a Republican representing Colorado, tweeted that prior to being confirmed as Attorney General, Sessions had promised Gardner that he would not go after legalized marijuana. Gardner has threatened to hold up confirming members of the Justice Department in retaliation if Sessions acts on this new guidance. This indicates potential backlash from within the President’s and the Attorney General’s party.
Sessions’ decision comes shortly after California began the sale of legalized marijuana on Monday January 1st. While many of the states that have legalized recreational marijuana, such as California, are so-called blue states, they are also joined by Alaska. In addition, 9 of the 21 medical marijuana states voted for Trump in the 2016 election, including the swing states of Michigan, Ohio, and Pennsylvania.
The mix of states that have legalized to varying degrees, as well as questions of federal preemption and states’ rights, make this an important area for seeing U.S. federalism in practice. As a country we love to talk about states as “laboratories of democracy” being free to experiment with different policies without jeopardizing the entire country with such attempts. It seems that states’ efforts to legalize marijuana demonstrate this in practice. However, with marijuana still illegal at the federal level, and with Sessions’ long track-record of being anti-marijuana, this fight was all but inevitable.
Whether the federal government begins enforcing drug laws in legalized states, if it does so in all states or targets only certain states, and how the states respond are all important questions that have arisen as a result of Sessions’ announcement. Additionally, how much this new decision will cost in federal assets if crackdowns are implemented, and what will happen to the economies of states that have legalized—and the jobs of those who work in the new boom industry—are also things that we cannot possibly know now, but that are likely to have an impact on midterm elections later this year.
Daniel Tagliarina is Assistant Professor of Government and Politics at Utica College.
