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Published: Fri, 23 Feb 2018 00:00:00 -0500

Last Build Date: Fri, 23 Feb 2018 03:46:43 -0500


Federalists Can’t Support a Cannabis Crackdown

Wed, 10 Jan 2018 00:01:00 -0500

Before last Thursday, state-licensed marijuana merchants operated in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Now that Attorney General Jeff Sessions has clarified the Justice Department's policy regarding the cannabis industry, state-licensed marijuana merchants operate in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Sessions calls this "a return to the rule of law." The description is dubious, not only because the situation for state-legal marijuana growers and distributors is fundamentally unchanged but also because the cannabis crackdown threatened by Sessions offends a basic principle of constitutional law: The federal government may not exercise powers it was never granted. U.S. attorneys prosecute a minuscule percentage of marijuana violations, and they have very broad discretion to decide which ones are worth their time. Sessions rescinded Justice Department guidelines that said a violator's compliance with state law was one factor prosecutors should consider. The reasoning, as explained in a 2013 memo from James Cole, then the deputy attorney general, was that state-regulated marijuana businesses are less likely to impinge on "federal enforcement priorities" such as stopping interstate smuggling and sales to minors. Cole did not tell U.S. attorneys to leave state-legal cannabusinesses alone, but since 2013 they generally have. It's not clear whether Sessions' memo will change that. Sessions called the marijuana-specific guidelines "unnecessary" and said prosecutors should be guided by "the Department's well-established general principles." Last week the interim U.S. attorneys in Colorado and the Southern District of California, both Sessions appointees, said they would continue as before. But given Sessions' well-known opposition to marijuana legalization, his memo was widely seen as portending more aggressive enforcement of the federal ban. That prospect provoked bipartisan criticism from state officials and members of Congress, uniting Democrats who support drug policy reform with Republicans who support federalism. Sessions' boss counts himself in the latter group, and he has repeatedly applied the principle of state autonomy to marijuana. In July 2016, for instance, a TV reporter in Colorado Springs asked Donald Trump what he thought about using federal power to shut down the state-authorized cannabis industry in states such as Colorado. "I wouldn't do that, no," Trump replied. "I'm a states person. I think it should be up to the states, absolutely." That position is broadly popular. Last summer a Quinnipiac University poll found that 75 percent of Americans, including 59 percent of Republicans, opposed "enforcing federal laws against marijuana" in the 29 states that "have already legalized medical or recreational marijuana." Refraining from such interference also happens to be what the Constitution requires. Under the 10th Amendment, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Unlike alcohol prohibition, the national marijuana ban was never authorized by a constitutional amendment. Its purported legitimacy instead relies on reading the power to regulate interstate commerce so broadly that it accommodates nearly anything Congress wants to do. In 2005 the Supreme Court said the Commerce Clause covers every last speck of cannabis in the country, even if it never crosses state lines, down to the plant in a cancer patient's closet or the bag of buds in her nightstand. "If Congress can regulate this under the Commerce Clause," noted dissenting Justice Clarence Thomas, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers." Republican critics of Sessions' marijuana m[...]

4 Things Congress Can Do to Stop a Cannabis Crackdown

Mon, 08 Jan 2018 13:50:00 -0500

Last week Attorney General Jeff Sessions provoked bipartisan protests from members of Congress when he rescinded Obama administration guidelines discouraging U.S. attorneys from prosecuting state-legal marijuana suppliers. The move united progressive Democrats who support drug policy reform with conservative Republicans who believe in federalism (especially if they happen to represent one of the 29 states that have legalized marijuana for medical or recreational use). Legislators, of course, can do more than complain; they have the power to resolve the conflict between state and federal law in this area more definitively than Justice Department memos ever could. Here are some of their options. 1. Spending Rider Since 2014 a spending rider now known as the Rohrabacher-Blumenauer amendment has prohibited the Justice Department from interfering with the implementation of state medical marijuana laws. According to the U.S. Court of Appeals for the 9th Circuit, the rider means the DOJ may not prosecute people for marijuana-related conduct that complies with state law, even in cases initiated before the rider was passed. The rider must be renewed every fiscal year, and Sessions has urged Congress not to do so, saying it unwisely constrains prosecutorial discretion. The amendment, which was extended through January 19, will expire after then unless it is included in the overdue omnibus spending bill for this fiscal year. As currently written, the Rohrabacher-Blumenauer amendment does not protect state-licensed marijuana suppliers who serve recreational customers. In light of Sessions' decision, there is a decent chance that an expanded version of the rider, covering all state marijuana laws that depart from prohibition, will be included in the next omnibus spending bill. But the rider would last only until the end of the current fiscal year, after which it would have to be renewed again. It is also possible that other federal appeals courts will read the rider more narrowly than the 9th Circuit has (although that circuit does include five of the eight states that have legalized marijuana for recreational use). 2. Respect State Marijuana Laws Act Recognizing the uncertainty caused by the limited duration and scope of his spending rider, Rep. Dana Rohrabacher (R-Calif.) is also sponsoring the Respect State Marijuana Laws Act, which he and Rep. Justin Amash (R-Mich.) first introduced in 2013. The act is admirable in its simplicity, declaring that the provisions of the Controlled Substances Act dealing with cannabis "shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana." The current version of the bill, introduced last February, has two dozen cosponsors, including 12 Republicans. It may pick up more support thanks to Sessions. "Because of @jeffsessions actions," Rep. Rod Blum (R-Iowa) tweeted on Friday, "I'm joining the 'Respect State Marijuana Laws' bill. I believe in States' Rights & I've seen how cannabis derived medicines can stop seizures in a child, help a veteran cope with pain, or provide relief to a senior with glaucoma." 3. Ending Federal Marijuana Prohibition Act The Ending Federal Marijuana Prohibition Act, which was introduced by Rep. Thomas Garrett (R-Va.) last February, is somewhat more ambitious than Rohrabacher's bill but would have much the same practical effect. Rather than carving out exceptions to the federal ban, it removes marijuana from Schedule I of the Controlled Substances Act entirely while criminalizing its importation into states where it remains illegal. The bill has 15 cosponsors, including five Republicans. 4. Marijuana Justice Act Like Garrett's bill, the Marijuana Justice Act, which was introduced by Sen. Cory Booker (D-N.J.) last August, would deschedule marijuana. It also includes provisions expunging federal marijuana possession convictions, allowing reduced sentences for other federal marijuana offenders, and restricting federal law enforcement [...]

Washington, California Trying to Punish Businesses that Overly Cooperate with Feds on Immigration

Mon, 08 Jan 2018 13:30:00 -0500

Can a state government punish a private business for voluntarily cooperating or assisting federal officials in enforcing federal immigration laws? We may find out in both Washington State and California, as the conflict between the states and the feds over immigration enforcement heats up. In Washington, state Attorney General Bob Ferguson is suing Motel 6. The budget national hotel chain got some media attention last fall after employees told the Phoenix New Times in Arizona it was quietly sending the names of its customers to Immigration and Customs Enforcement (ICE) officials so they could possibly track down people staying there who were in the country illegally. In a statement after filing suit, Ferguson says they found that Motel 6 locations in Washington State were also cooperating with ICE and passing along "the personal information of at least 9,151 guests to ICE, even though its privacy policy assured consumers it would protect this information." Ferguson says Motel 6's cooperation is a violation of the customers' privacy in that they did so without a warrant or subpoena and that their cooperation was based on the perceived national identity of guests (meaning they suspected they were from outside the country based on name and ethnicity). Ferguoson says these acts violate Washington's privacy and discrimination laws and the state's constitution. The reference to Washington's state constitution is relevant because the state has its own privacy laws. Historically, our private information as citizens does not have the same Fourth Amendment protection from unwarranted searches when it's held by a third party (like a hotel). It's known as the third-party doctrine, is based on Supreme Court precedents from the 1970s, and plays a huge role in the various legal challenges and fights to stop unwarranted surveillance and access to our phone and computer data. States are certainly permitted to establish stricter boundaries that restrain local and state police from accessing third-party data about private people without warrants. In fact, that's awesome. And that's what Washington State has done. But attempting to force private companies from following those guidelines in their interactions with federal officials takes the law to a different place. ICE is not constrained by Washington State's privacy laws when collecting third-party information. But is Motel 6 when communicating with ICE officials? We may end up seeing more cases just like this thanks to new laws in California that came into effect with the new year. California has implemented a new law that prohibits private employers from voluntarily consenting to allow federal immigration officials to search "nonpublic areas of a place of labor" if they do not have a warrant. It further forbids employers from voluntarily allowing immigration officials access to employee records if the officials do not have a warrant or subpoena. Fines for violating this law range from $2,000 to $10,000 per incident. That California implemented such a law is itself rather fascinating—and a sign of what resistance to the Trump administration leads to—because just three years ago the state was insisting that its own law enforcement officers did have a limited right to access registries of hotel guests without having to get warrants. The case of Los Angeles v. Patel went all the way to the Supreme Court, and the court ruled 5-4 that the Los Angeles Police Department could not demand access to a hotel's guest registry without at least allow the hotel an avenue for appeal. Here's a fun twist: Former California Attorney General Kamala Harris (now a senator) took the side of the City of Los Angeles and the LAPD to engage in unwarranted collection of hotel guest registries for crimefighting purposes. Her office submitted an amicus brief to the Supreme Court encouraging them to find for the city. But now that the Trump administration may use access to labor records as a mechanism to deport people, suddenly the self-proclaimed sanctuary st[...]

The Rule of Law Supports Marijuana Federalism

Sun, 07 Jan 2018 10:30:00 -0500

On Thursday, Attorney General Jeff Sessions announced that he was rescinding all of the Obama administration's enforcement guidance that had foresworn enforcement of the Controlled Substances Act against marijuana that was legal under state law.

There has been plenty of criticism of Sessions's new position, including from my co-bloggers Ilya and Jonathan here. One major line I've seen in defense of Sessions's action is that his position is truer to the rule of law: Maybe Congress should decentralize marijuana policy, the argument goes, but until it does the executive branch should be enforcing the law, not suspending or dispensing with ones it thinks are unwise.

As a general principle, I think there is a lot to that. But in this case, I do not think the rule of law requires the renewed enforcement of the Controlled Substances Act, and if anything requires the opposite. My reasons are detailed in my three-year-old paper on marijuana federalism, State Regulation and the Necessary and Proper Clause, but there are two key points:

First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. Congress's enumerated powers are to regulate interstate commerce, and to pass laws necessary and proper to carrying that interstate regulation into effect.

This means that Congress can ban the interstate drug trade, and it can also police in-state drugs that would spill over into interstate commerce. But that does not mean all in-state drugs. It depends on the circumstances in each state, and it especially depends on how each state regulates the drug and polices possible spillovers. The Supreme Court dismissed the role of states in a footnote in Gonzales v. Raich, but it was wrong to do so.

Second, the attorney general does not have to and should not adopt the Supreme Court's reasoning in Raich as federal law enforcement policy. Members of the executive branch have their own obligation to interpret the Constitution, and if a federal law is unconstitutional in part then the executive branch, no less than the courts, should say so. It is the Constitution, not the Court, that is the ultimate rule of law in our system.

So to be most consistent with the rule of law, what Attorney General Sessions should have done would have been to revise the Obama administration's enforcement guidance so that it was based on the Constitution -- on the limits of federal power to reach wholly in-state activity -- rather than on sheer policy discretion.

I understand the instinct to be wary of excessive executive discretion in law enforcement. But we should not forget that the Constitution is one of the laws that the executive enforces -- and hopefully, above all others.

As Sessions Moves Against State-Legal Weed, Vermont Lawmakers Approve Marijuana Bill

Fri, 05 Jan 2018 15:55:00 -0500

Just hours after Attorney General Jeff Sessions signaled a shift in how the federal government would view state-level laws legalizing the production, sale, and possession of marijuana, Vermont took a step toward becoming the ninth state to legalize weed for recreational purposes. The Vermont House voted 83–61 last night to approve a bill legalizing the possession of marijuana, sending the measure to the state Senate where, according to local media reports, it is expected to pass. The bill does not legalize buying and selling pot. A previous effort that would have created a market for recreational marijuana was vetoed last year by Republican Gov. Phil Scott. The bill approved Thursday is supposed to be a compromise with the governor's office, according to the Burlington Free Press, but Scott has not yet indicated whether he will sign the bill. In the meantime, neighboring New Hampshire could move a marijuana legalization bill this month. Coming as it did in the hours after Sessions announced plans to rescind the Cole Memo—the Obama-era guidance that essentially told federal prosecutors to leave marijuana businesses alone in states that had voted to legalize—it's easy to interpret the Vermont vote as an immediate flexing of federalism. But in reality, the Vermont bill has been subject to months of negotiations in Montpelier and the timing is coincidental. Indeed, some lawmakers suggested postponing yesterday's vote in light of the developments in Washington, the Free Press reports. Still, Vermont's movement on marijuana is potentially important for two major reasons. First, legalizing via legislation is an important shift in how states handle marijuana policy. Just as politics are downstream from culture, legislatures are downstream from voters' desires. Data from the Pew Research Center show that 61 percent of Americans now favor legal recreational marijuana, up from just 33 percent at the turn of the century. Even as those numbers have steadily ticked upwards, and even as voters have repeatedly demonstrated their preference for legal weed via referendum, state lawmakers have been unwilling to put their names on the line and vote for marijuana legalization. This week's developments in Montpelier suggest that voters' preferences and public opinion about marijuana are finally filtering down to statehouses. Secondly, the bill's success even in the wake of Sessions' announcement could signal a backlash against the Trump administration that—counterintuitively—might boost the chances of legalization in other places. Tom Angell, editor of the online trade publication Marijuana Moment, points out that opposition to Sessions' move has come from all sides of the political spectrum. "Democratic and Republican House and Senate members who almost never talk about marijuana, except when asked about it, proactively released statements pushing back against Sessions," Angell writes. By trying to launch a crackdown, Sessions might finally force a resolution to the murky gray area between state and federal marijuana laws. Legislators as geographically and ideologically diverse as Rep. Rob Blum (R-Iowa) and House Minority Leader Nancy Pelosi (D-Calif.) reacted to Sessions' announcement by calling for the feds to leave state-legal weed alone. And Sen. Cory Gardner (R-Colo.) announced he would delay nominations for Justice Department officials until Sessions offered a better explanation about what the policy shift will mean for states that have already legalized weed. In many ways, the GOP backlash is more important than the actions of blue-staters like Pelosi or the Democrat-controlled Vermont legislature. For one, it's a signal that even some Republicans believe Sessions has stepped out of line. More importantly, Republicans control the vast majority of state legislatures and governorships at the moment. If there's going to be a real policy backlash against Sessions, it will have to come from Republicans—including Vermont[...]

Did Jeff Sessions' Marijuana Memo Restore the Rule of Law?

Fri, 05 Jan 2018 15:15:00 -0500

Attorney General Jeff Sessions said the memo on marijuana enforcement he issued yesterday represented "a return to the rule of law." White House Press Secretary Sarah Sanders offered the same spin, telling reporters "the president believes in enforcing federal law...regardless of what the topic is, whether it's marijuana or whether it's immigration." But the the question for U.S. attorneys confronted by state-licensed marijuana suppliers was never whether they would enforce federal law; it was how they would enforce federal law. National Review's David French agrees that Sessions' action amounts to "a restoration of the rule of law and the end of yet another unconstitutional Obama policy that privileged executive power over the American constitutional structure." He argues that the Obama administration tried to achieve through executive action what only Congress can do: repeal the federal ban on marijuana (a move that French supports). French is surely right that the Obama administration's prosecutorial restraint, as a solution to the conflict between state and federal marijuana laws, was vastly inferior to legislation making the federal ban inapplicable to people who comply with state law. But even if U.S. attorneys use their discretion differently in response to Sessions' memo (and it's not clear they will), they cannot avoid picking and choosing among cases, because it is impossible to "enforce federal law" against all violators, or even a meaningful share of them. Marijuana enforcement is primarily a state responsibility, with the feds accounting for less than 1 percent of arrests. U.S. attorneys have never prosecuted more than a minuscule percentage of federal drug law violations. They have always had to decide which drug cases were worth pursuing, and they have always had very broad discretion in doing so, for better or worse. Those decisions became more complicated as more and more states opted out of marijuana prohibition, because the Justice Department could no longer count on state and local help in enforcing the federal ban. The DOJ never had the resources to enforce marijuana prohibition on its own, and now it has to be even pickier in selecting its targets. The Obama administration's approach to this issue was a study in ambiguity. It could not simply announce that state-licensed marijuana growers and distributors, who openly commit federal felonies every day, would not be prosecuted as long as they complied with state law. Instead the guidance that Deputy Attorney General James Cole gave in 2013, which Sessions rescinded yesterday along with four related memos, said compliance with state law was one factor to consider in choosing marijuana cases. His reasoning was that oversight by "a strong and effective state regulatory system" makes it less likely that a marijuana supplier's activities will implicate "federal enforcement priorities" such as preventing violence, sales to minors, interstate smuggling, and "adverse public health consequences." Cole did not tell U.S. attorneys to leave state-legal marijuana businesses alone. "The existence of a strong and effective state regulatory system, and an operation's compliance with such a system, may allay the threat that an operation's size poses to federal enforcement interests," he said. "Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department's enforcement priorities listed above. Rather, prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system." Contrary to what a Justice Department official claimed yesterday, that memo did not create a "safe harbor." Cole [...]

‘The War on Pot…Has Affected Millions of Lives in This Country Negatively’

Thu, 04 Jan 2018 22:25:00 -0500

(image) "Whenever this topic comes up," Fox Business Network host Charles Payne said today, while kicking off a segment about the Attorney General Jeff Sessions' new marijuana enforcement guidelines, "everyone says, 'Let's grab Matt!'"

I am always happy to talk about America's shameful, life-mangling War on Drugs with anyone, on any network, from any continent. Especially on days like today, when an announced decision by a powerful politician reminds us of how arbitrary the lines are between freedom and oppression when government decides to police what individuals choose to put into their own bodies. In this clip, which also includes Washington Times columnist Madison Gesiotto, I respond to Payne's question about whether we should weigh post-legalization safety stats in states such as Colorado by saying, "The War on Drugs—and the war on pot, which is a significant part of it—has affected millions of lives in this country negatively. I look at that as being more significant than a slight uptick or downtick in any macro kind of economic indicator." The whole exchange, including Rick James references, below:


Jacob Sullum, who has forgotten more about drug laws than every TV anchor knows combined, explained in detail earlier today how "On paper, Sessions' memo does not change DOJ policy." At The Volokh Conspiracy, Ilya Somin characterized it is as a "limited, but potentially dangerous step." And Damon Root also reminded us about the awful, Sessions-enabling 2005 Supreme Court decision (which itself is a cautionary tale about how the War on Drugs leads directly to restrictions on liberty that have zero to do with getting high).

More in this space tomorrow.

Jeff Sessions Escalates the Federal War on Marijuana - and his Assault on Federalism

Thu, 04 Jan 2018 21:40:00 -0500

Earlier today, Attorney General Jeff Sessions announced that he will rescind an Obama-era Justice Department policy limiting federal prosecution of marijuana users and distributers in states that have legalized cannabis. For reasons well-summarized by co-blogger Jonathan Adler, this is a bad decision on both policy and legal grounds. In the short run, the impact may be relatively minor. The Obama policy offered far from complete protection to cannabis businesses. To the contrary, as I explained back when the policy was first instituted in 2013, it included numerous exceptions that in practice allowed federal prosecutors to go after almost any marijuana producer they had a strong desire to target. Because federal law enforcement resources are limited and the federal government often relies heavily on state and local cooperation in drug cases, it is unlikely that the Justice Department will be able to target more than a small fraction of the new legal cannabis industry. Nonetheless, the Sessions policy reversal is potentially very important. At the very least, it signals a new, more aggressive federal posture towards states that have legalized marijuana. The Attorney General's new stance is a signal to federal prosecutors and law enforcement officials that the Justice Department supports stronger efforts to undercut legalized marijuana markets in the states. If Sessions did not intend to send such a signal, there would have been little point to his action. And while the feds may not have the resources to go after the vast majority of marijuana sellers, even targeting a few could have a major chilling effect. Businesses will be reluctant to operate in the open if there is even a modest chance that the feds will target them, subjecting the owners to the risk of losing their investment and facing prison time. That may be even more true for investors and financial institutions that work with this newly legal industry. Since 2012, eight states have legalized recreational marijuana, including such major ones as California (where legalization has just gone into effect), Colorado, and Massachusetts. Legal businesses involved in selling marijuana may be reluctant to do so if they face a potential federal crackdown - even one that is unlikely to directly impact the majority of them. This in turn, could drive much of the marijuana industry back in to the black market, where it would once again promote violence and organized crime of the sort that have been a major product of the War on Drugs. Jeff Sessions likes to pose as a great scourge of criminal drug gangs, such as MS-13. But such gangs are likely to be among the major beneficiaries of his efforts to renew the federal war on marijuana. Sessions' new marijuana policy should be considered in conjunction with his expansion of asset forfeiture, policies that allow the government to confiscate property that may have been used in the commission of a crime, even if the owner has never been convicted or even charged with any offense. If the feds target newly established marijuana businesses in states that have legalized pot, they can use civil asset forfeiture to seize the owners' property, even if those owners are not convicted of a crime. The prospect of such treatment could potentially be a major deterrent to participation in the marijuana industry. Like his asset forfeiture policy and his attack on sanctuary cities, Sessions' effort to target marijuana in states that have legalized it is an assault on constitutional federalism, as well as terrible policy. It undermines state autonomy on a policy issue where there is little, if any justification for federally imposed uniformity. Admittedly, as Damon Root points out, the policy is consistent with a series of dubious Supreme Court decisions. The most notable is in Gonzales v. Raich (2005), which held that Congress's power to regulate interstate c[...]

Sessions Still Is Not Leading a Cannabis Crackdown

Thu, 04 Jan 2018 14:50:00 -0500

Today Attorney General Jeff Sessions rescinded a 2013 Justice Department memo that signaled a policy of prosecutorial restraint for state-licensed marijuana businesses. Rather than suggesting to U.S. attorneys how they should decide which marijuana cases to pursue, Sessions is letting them decide for themselves. Although that move reflects Sessions' well-known opposition to marijuana legalization, it is not clear how big an impact it will have on the cannabis industry, because federal prosecutors have always had broad discretion but limited resources in this area. "Given the Department's well-established general principles," Sessions writes in a one-page memo he sent U.S. attorneys today, "previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately." He is referring mainly to a 2013 memo in which James Cole, then the deputy attorney general, said U.S. attorneys, in deciding whether to target marijuana suppliers who comply with state law, should be guided by "certain enforcement priorities that are particularly important to the federal government." Cole listed eight priorities, including the prevention of interstate smuggling, sales to minors, and drugged driving or other "adverse public health consequences." He added that "nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest." On paper, the Cole memo left U.S. attorneys free to prosecute state-legal marijuana growers and distributors, as long as they could invoke an important federal interest. That would not have been hard, given the breadth of the goals specified by Cole and his warning that the list was not exhaustive. But in practice, U.S. attorneys since 2013 generally have refrained from targeting marijuana businesses unless they violate state as well as federal law. Sessions could have tried to change that without rescinding the Cole memo. As a senator and as attorney general, he has said the memo provides sound prosecutorial guidance while suggesting that it has not been applied as aggressively as it should have been. He could easily have defended a broad cannabis crackdown based on the priorities Cole listed. Every marijuana merchant, for example, arguably contributes to drugged driving and underage consumption (through diversion from adult customers if not through lax ID checks), so shutting down the biggest operations through prosecution or forfeiture fits comfortably within the contours of the Cole memo. But Sessions has not attempted anything like that. On paper, Sessions' memo does not change DOJ policy. By his own account, it merely eliminates gratuitous guidance that was already implicit in the DOJ's "well-established general principles." The question is whether U.S. attorneys will now be more inclined to go after the many highly conspicuous, state-licensed marijuana suppliers who are openly committing federal felonies every day. Although the Justice Department does not have the resources to prosecute all of them, a few raids, or even a few threatening letters, would seriously disrupt the industry. It's not clear that's what Sessions wants to see, notwithstanding his strong anti-pot prejudices. Most Americans think marijuana should be legal, and an even larger majority, including most Republicans, says the decision should be left to the states. Sessions' boss, who is already irked at him because of the Russia investigation, has repeatedly said states should be free to legalize marijuana for medical or recreational use (although he is less enthusiastic about the latter option). Marijuana is legal for recreational use in eight states, home to one in five Americans. Medical marijuana is legal in 29 states. A cannabis [...]

Will AG Sessions Make Federalism Go Up in Smoke?

Thu, 04 Jan 2018 11:17:00 -0500

Several news outlets are reporting that Attorney General Jeff Sessions will rescind the Department of Justice memoranda providing that the federal government would largely eschew enforcement of federal marijuana laws against those acting in compliance with applicable state laws, unless there is a threat of trafficking, diversion, or juvenile access. [Update: The memorandum from AG Sessions announcing the new policy is here.] The move is almost certainly prompted by the decision of California voters to legalize possession and recreational use of marijuana within the state. That law took effect at the beginning of this year. The Attorney General has the authority to reorient federal enforcement priorities in this way, but I believe that is a mistake. Given the breadth of federal criminal laws, the Justice Department must prioritize its limited enforcement resources. A logical way to prioritize enforcement efforts is to focus federal resources on those crimes that implicate distinctly federal interests (such as interstate trafficking) or that are difficult for state and local authorities to handle on their own (such as some complicated financial crimes and matters that cross state lines). Such an approach is not only more efficient, it is also consistent with the underlying constitutional structure, in which the federal government has limited and enumerated powers -- including the power to regulate commerce "among the several states" -- and in which general police power is reserved to the states. The Cole memorandum issued during the Obama Administration was largely consistent with this sort of federalist principle. If anything, this memorandum did not go far enough. Ideally, Congress would reform federal drug laws to facilitate state experimentation while also protecting states in which prohibition is maintained from any excesses of their neighbors. (Note to members of Congress poised to criticize AG Sessions: Why don't you do your job and push legislation to address this issue?) AG Sessions decision may satisfy some parts of the conservative base, but it will do little to control drug use, and much to destabilize a nascent industry -- as well as to drive more of the marijuana business underground and into the hands of organized crime. (It's also likely to hurt the Republican Party's political prospects, particularly with younger voters.) It's both bad policy and bad politics. (And, insofar as it's based upon the Supreme Court's unfortunate decision in Gonzales v. Raich, it's bad law too.) The underlying legal and policy issues remain the same as when I last blogged on this subject in August. With that in mind, I reproduce my August 14 Volokh Conspiracy post, "Will Marijuana Make Federalism Go Up in Smoke?" below (free of any paywall). During the campaign, Donald Trump endorsed medical marijuana and said pot legalization "should be a state issue, state-by-state." Attorney General Jeff Sessions, on the other hand, is a fierce opponent of marijuana and has opposed measures that would limit the federal government's ability to interfere with state decriminalization efforts. Last month, Sessions reiterated the federal government's authority to enforce federal drug laws "regardless of state law," and some fear he will resist congressional efforts to protect medical marijuana from federal drug laws. Yet Sessions is not the greatest threat to continuing state-level marijuana reform efforts. Lawmakers and citizen initiatives have successfully reformed marijuana laws in a majority of states. Twenty-nine states allow for the medical use of marijuana, according to the National Conference of State Legislatures. Eight have legalized marijuana possession and use altogether, allowing for recreational use. At least a dozen more states have effectively decriminalized possession of marijuana in smal[...]

Demise of Trump Voter Fraud Commission Is a Victory for Federalism

Thu, 04 Jan 2018 10:20:00 -0500

Yesterday, the White House announced that President Trump has issued an executive order shutting down his Presidential Advisory Commission on Election Integrity, which was planning to investigate alleged voter fraud around the country. The Commission was headed by Vice President Mike Pence (chair of the commission) and Vice Chairman Kris Kobach, the highly partisan Secretary of State of Kansas known for initiating dubious prosecutions, and promoting highly restrictive voting laws. Kobach oversaw most of the commission's activities. The White House statement accompanying the order said that Trump decided to shut down the commission because "many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry." The statement also noted that Trump chose not to "engage in endless legal battles" to get the states to turn over the information - a strong indication that the administration probably expected to lose many of those battles. Forty-four states, as well as the District of Columbia, rejected some or all of Kobach's demands that they turn over information such as the names, addresses, party registrations, and last four digits of Social Security numbers of voters. State officials cited concerns about privacy and state sovereignty as reasons to reject the Commission's demands. The objecting states included many with Republican-controlled state governments. Mississippi GOP Secretary of State Delbert Hosemann suggested that the Commission should "go jump in the Gulf of Mexico and Mississippi is a great State to launch from." He rejected the request because "our State's right to protect the privacy of our citizens by conducting our own electoral processes." State governments' successful resistance to the Commission's demands is a victory for privacy, and also for federalism as a constraint on overreaching by the federal government. It is dangerous to trust the feds with sensitive information on voters across the country - especially, but certainly not exclusively, when the presidency is held by a man with as little respect for civil liberties as Trump. This issue, along with others such as the litigation challenging the administration's efforts to punish sanctuary cities, is an example of how state and local governments (many of them liberal Democratic ones) are using federalism to resist Trump. In many cases, the legal doctrines in question were first developed by conservative judges, often over the bitter opposition of the left. Perhaps these cases will help lead the left to rethink some of their traditional skepticism about federalism and judicial enforcement of constitutional constraints on federal power, as some liberals have already begun to do. At the same time, we should not be overly optimistic, as "fair weather federalism" is a longstanding problem on both sides of the political spectrum. Most election law experts believe that in-person voter fraud is extremely rare, and that there is no evidence support Trump's claims that it is widespread, and accounted for his loss of the popular vote in the 2016 election. But even if you believe it is a more serious problem than most experts conclude, a commission headed by a highly biased figure like Kobach was hardly the right way to seek solutions. Moreover, subject to the constraints imposed by constitutional rights, the Constitution leaves most issues of election administration to state governments. It is they who should deal with voter fraud. Federal control over election procedures would potentially enable the party that controls Congress and the White House to bias voting rules around the country in its own favor. Similar abuses can and do occur at the state level, as well. But at least pro-Democratic bias in liberal states is o[...]

Even Without the Rider That Protects Medical Marijuana, a Pot Crackdown Is Unlikely

Mon, 18 Dec 2017 14:00:00 -0500

As we approach the end of 2017, it's not clear whether Congress will renew the Rohrabacher-Blumenauer amendment, which prohibits the Justice Department from interfering with state medical marijuana laws. James Higdon, writing in Politico Magazine, argues that the demise of the spending rider would be "a major boost" for Attorney General Jeff Sessions' "yearning to battle legal marijuana," leaving him "free to unleash federal drug agents" on state-licensed growers and distributors. That gloss overestimates the amendment's significance and underestimates the factors that have deterred Sessions from cracking down on state-legal marijuana, notwithstanding his well-known fear and loathing of the plant. The medical marijuana amendment, which was first enacted in December 2014 and has been renewed each year since then, has proven a significant barrier to DOJ harassment of patients and providers. A federal appeals court has ruled that the amendment bars prosecution of medical marijuana growers and suppliers whose actions comply with state law, including continued pursuit of cases initiated before the amendment took effect. Sessions himself concedes that the rider ties his hands in those respects. The protection also extends to civil actions aimed at shutting down dispensaries. Sessions, not surprisingly, resents the restraint, and in May he urged Congress to let the amendment expire. Yet the Rohrabacher-Blumenauer amendment does not apply to state-licensed businesses that supply the recreational market, which Sessions nevertheless has refrained from targeting. Sessions says he is sticking to the Obama administration policy of going after state-legal cannabusinesses only if they impinge on "federal law enforcement priorities" such as preventing interstate smuggling and sales to minors. While that policy leaves a lot of wiggle room for an attorney general inclined to enforce the federal ban on marijuana more aggressively, Sessions so far has not taken advantage of it. There are several good reasons for his reticence: 1. Most Americans think marijuana should be legal, and an even larger majority, including most Republicans, says the decision should be left to the states. 2. Sessions' boss, who is already irked at him because of the Russia investigation, has repeatedly said states should be free to legalize marijuana for medical or recreational use (although he is less enthusiastic about the latter option). 3. Marijuana is legal for recreational use in eight states, home to one in five Americans. Medical marijuana is legal in 29 states. A cannabis crackdown would anger officials from those states, creating political headaches that neither Sessions nor Donald Trump needs. 4. While the DOJ could close down conspicuous cannabusinesses easily enough, maybe just by sending some threatening letters, it does not have the resources to prevent home cultivation, which is legal in seven of the eight states that allow recreational use. A crackdown would shift the supply from a few visible and regulated sources to myriad uncontrollable growers. Whatever happens with the Rohrabacher-Bluemenauer amendment, these factors would continue to discourage Sessions from giving his anti-pot prejudices full rein.[...]

Today at SCOTUS: Does the Federal Ban on Sports Gambling Violate the 10th Amendment?

Mon, 04 Dec 2017 07:45:00 -0500

(image) The Professional and Amateur Sports Protection Act of 1992 made it illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. In oral arguments today in the case of Christie v. National Collegiate Athletic Association, the U.S. Supreme Court will consider whether that federal law runs afoul of the 10th Amendment and its underlying principles of constitutional federalism.

On one side of Christie v. N.C.A.A. stands the state of New Jersey, whose voters amended the state constitution in 2012 in order to legalize sports gambling. Garden State lawmakers responded by partially lifting the existing state ban on the practice at casinos and racetracks.

On the other side of the case stands the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and the Office of the Commissioner of Baseball, all of which seek to prevent the state's legalization efforts.

The sports leagues argue that New Jersey is illegally flaunting the Professional and Amateur Sports Protection Act and should be stopped. New Jersey argues that that federal law is overreaching and unconstitutional.

The outcome of the case is likely to turn on the Supreme Court's application of two precedents from the 1990s. In New York v. United States (1992), the Court held that "while Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions."

Five years later, in Printz v. United States (1997), the Court continued in this vein. "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." In short, "federal commandeering of state governments" goes against the Constitution.

The legal question at the heart of Christie v. N.C.A.A. is whether the Professional and Amateur Sports Protection Act, or PASPA, violates the anti-commandeering doctrine set forth in New York and Printz.

New Jersey argues that PASPA does violate the doctrine and should therefore be declared unconstitutional. "Under our Constitution," the state argues, "if Congress wishes for sports wagering to be illegal, it must make the activity unlawful itself. It cannot compel States to do so."

The sports leagues take the opposite view. "Congress' power to regulate gambling on a nationwide basis," the leagues maintain, "is as settled as its power to prohibit states from undertaking or authorizing conduct that conflicts with federal policy, and nothing in [New Jersey's] arguments calls either commonly exercised power into question."

Which side will prevail in this dispute, federalism or federal power? We'll get our first indications during today's oral arguments.

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Will SCOTUS Bet on Federalism?

Fri, 01 Dec 2017 12:00:00 -0500

New Jersey is on a constitutional collision course with the federal government—and with some of the biggest names in professional and college sports. At issue is whether Congress violates the 10th Amendment by forbidding the Garden State from partially repealing its statewide ban on sports betting.

Christie v. National Collegiate Athletic Association, which comes before the U.S. Supreme Court this term, has the makings to be one of the biggest federalism cases in years.

In 2012, New Jersey voters amended the state constitution to legalize sports betting at racetracks and casinos statewide. Lawmakers responded by partially lifting an existing ban on the practice.

But then the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and the Office of the Commissioner of Baseball filed suit to thwart the effort. They argue the state has contravened the federal Professional and Amateur Sports Protection Act (PASPA), which made it illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting.

That federal law did contain exemptions for states such as Nevada, where sports gambling was already legal, and for Atlantic City, New Jersey. But the overall purpose was to prevent states from legalizing sports betting. The Garden State is now fighting to get the feds off its back. "Never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal," New Jersey told the Supreme Court in its petition for certiorari.

The sports leagues, which oppose legalized betting on the grounds that it will lead to bribery and corruption among athletes and officials, insist that the federal government has every right to control the states in this manner. PASPA is "an unremarkable exercise of Congress' settled power to regulate commerce in sports gambling," they claim. The Trump administration takes an equally broad view of federal power.

A nationwide ban on sports betting would probably be upheld by the Supreme Court under existing precedent, which recognizes broad congressional power to regulate economic activity. But that is not the sort of regulation being challenged here. In this case, Congress has effectively dictated the terms of a state law in order to further its own regulatory goals. The Court has repeatedly said federal commandeering of the states is not permitted under the Constitution.

Soon we'll learn which the justices will put first—federalism or federal power. Place your bets now.

Coming Soon to SCOTUS: Federal Sports Betting Ban vs. the 10th Amendment

Thu, 30 Nov 2017 10:45:00 -0500

The U.S. Supreme Court will hear oral arguments on Monday in a 10th Amendment case that pits the state of New Jersey against both the federal government and the biggest names in professional and amateur sports. It will be a constitutional clash between federalism and federal power.

The case is Christie v. National Collegiate Athletic Association. In a new video produced by the Federalist Society, I explain the legal issues at stake in this high-profile dispute. Does the federal government have the lawful power to prevent New Jersey from partially legalizing sports betting in its casinos and racetracks? Or does the 10th Amendment shield the state from the federal government's reach? Click below to watch.

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