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In withdrawing federal protection for transgendered students, the Trump administration paid tribute to our federalist system. "The president believes that this is a states' rights issue," said White House spokesman Sean Spicer, "We are a states' rights party. The president in a lot of issues believes that these issues are states' rights issues."

Yet, hours later, the administration had little use for federalism in announcing that it would "punish" states that legalized marijuana. According to Spicer, we should expect to see "greater enforcement" of federal marijuana laws, regardless of states' marijuana laws.

The president's contradictory stances on these two issues are not just a matter of ideological inconsistency, either; a renewed war on pot would be bad policy.

In the last few years, eight states and the District of Columbia have legalized recreational marijuana. Another 28 states have legalized the use of marijuana for medical purposes. But despite this shift, police still made more than 574,000 arrests in 2015 for simple marijuana possession. To put that in perspective, there were fewer than 506,000 arrests that year for murder, non-negligent manslaughter, rape, robbery, and aggravated assault. That means more people were arrested for marijuana possession than for all violent crime combined. Does anyone really believe that this is a good use of police resources, or that federal agents should be ignoring serious crime and terrorism in order to chase after legal-weed users and producers in Colorado or Washington?

In speaking of the federal crack down on pot, Spicer linked marijuana legalization with increased use of other drugs including opioids. "When you see something like the opioid-addiction crisis blossoming in so many states around this country, the last thing we should be doing is encouraging people," he said. But studies of Colorado's experience with legalized marijuana show no increase in pot use among young people, and a decrease in consumption of other drugs as well as in binge drinking.

Donald Trump, of course, sees himself as the "law and order" president. This was a key plank in his campaign, and he has continued to make it a key part of his agenda as president. He regularly meets with police and other law-enforcement officials, and is effusive in praising their work. But a renewed war on pot may actually undermine the president's goals. Studies show that states that have legalized marijuana have seen a small but statistically significant decline in crime rates, including reductions in rape, larceny theft, property crime, and drunk and disorderly arrests. Plus which, marijuana legalization frees up police and prison resources for use in combating more serious crimes.

President Trump has repeatedly spoken of his desire to take on Mexico's drug cartels, even musing about sending US troops to Mexico to fight drug traffickers. And, of course, one of the stated purposes of his signature border wall is to stop "drugs pouring into this country." But if he really wants to hurt the cartels, he should leave marijuana legalization alone. The increased availability of legal, domestic marijuana has already reduced the demand for, and consequently the price of, Mexican marijuana, costing the cartels millions of dollars. One Mexican think tank calculated that if the United States legalized marijuana nationwide, the cartels would lose as much as $1.6 billion of their annual $2 billion in drug-smuggling revenue.

Even if these projections prove overly optimistic, one doesn't need to support legal marijuana to think that law-enforcement decisions, even more so than civil-rights protections, are best left up to the 50 states. It's hard to believe that our country's founders envisioned the federal government as a national sheriff. Indeed, the Constitution itself specifies just four federal crimes: treason, piracy, counterfeiting, and crimes committed on the high seas or against the law of nations. Today, the Congressional Research Service estimates that there are more than 4,000 federal offenses. On average, Congress creates 50 new federal crimes every year. The Trump administration's fair-weather federalism is furthering this dangerous trend.

The good news is that so far, the Trump administration's "war on pot" has been more talk than action. That means there is still time for the White House to realize that law enforcement's treatment of drugs is still very much a "states' rights issue."

- Michael Tanner is a senior fellow at the Cato Institute and the author of Going for Broke: Deficits, Debt, and the Entitlement Crisis. You can follow him on his blog, TannerOnPolicy.com.

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Marijuana Policy Is Best Left Up to the States

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In withdrawing federal protection for transgendered students, the Trump administration paid tribute to our federalist system. "The president believes that this is a states' rights issue," said White House spokesman Sean Spicer, "We are a states' rights party. The president in a lot of issues believes that these issues are states' rights issues."

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Last week White House Press Secretary Sean Spicer predicted "greater enforcement" of the federal ban on marijuana in the eight states that have legalized the drug for recreational use. This week Attorney General Jeff Sessions, an old-fashioned drug warrior who thinks "good people don't smoke marijuana," seemed to confirm Spicer's warning, telling reporters, "We're going to look at it...and try to adopt responsible policies."

If those "responsible policies" involve legal action aimed at shutting down state-licensed marijuana businesses, they will be contrary to public opinion, President Trump's campaign promises, and Sessions' own avowed support for federalism. As most Republicans seem to recognize, attempts to force marijuana prohibition on states that have opted out of it are inconsistent with the decentralized system of government established by the Constitution.

According to a recent Quinnipiac University survey, 59 percent of Americans think marijuana "should be made legal in the United States," while 71 percent "oppose the government enforcing federal laws against marijuana in states that have already legalized medical or recreational marijuana." Among Republicans, only 35 percent favored legalization, but 55 percent opposed federal interference with it.

Last April a CBS News poll found even stronger Republican opposition to federal meddling. Asked if "laws regarding whether the use of marijuana is legal" should be "determined by the federal government" or "left to each individual state government to decide," 70 percent of Republicans said the latter, compared to 55 percent of Democrats (who as usual were more likely to favor legalization). These results suggest many conservatives, whatever they think of marijuana, take seriously their commitment to federalism, which Trump also claims to support.

At the Conservative Political Action Conference in 2015, Trump said he favored medical marijuana but had concerns about broader legalization, a decision he nevertheless said should be left to the states. "In terms of marijuana and legalization," he said at a 2015 rally in Nevada, "I think that should be a state issue, state by state."

Sessions, a former Alabama senator, also claims to believe in federalism. After the death of William Rehnquist in 2005, Sessions gave a floor speech in which he praised the chief justice for "reestablish[ing] a respect for state law and state sovereignty." Sessions noted that the federal government, under its authority to regulate interstate commerce, "has broad power, but there are limits to the reach of the Commerce Clause."

When it comes to marijuana, however, Sessions has little patience for those limits. "It does remain a violation of federal law to distribute marijuana throughout any place in the United States," he observed on Monday, "whether a state legalizes it or not."

In 2005 the Supreme Court upheld continued enforcement of the federal ban on marijuana in states that have legalized the drug. But the Court did so based on a very broad reading of the Commerce Clause-the sort of interpretation that usually irks conservative constitutionalists.

The case involved homegrown marijuana used by patients in states that recognize the plant as a medicine. "If Congress can regulate this under the Commerce Clause," observed dissenting Justice Clarence Thomas, "then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers."

In relying on an understanding of the Commerce Clause that lets Congress do pretty much whatever it wants, Sessions outdoes one of the most famous anti-marijuana crusaders in U.S. history. Harry Anslinger, head of the Federal Bureau of Narcotics from 1930 to 1962, pushed states to ban marijuana by claiming the plant turned people into rapists and murderers.

But even Anslinger did not go so far as to claim the federal government had the authority to impose marijuana prohibition on recalcitrant states. "There are no Federal laws on the growth or use of marijuana," The New York Times reported in 1931. "Mr. Anslinger said the government under the Constitution cannot dictate what may be grown within individual States."
© Copyright 2017 by Creators Syndicate Inc.

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Last week White House Press Secretary Sean Spicer predicted "greater enforcement" of the federal ban on marijuana in the eight states that have legalized the drug for recreational use. This week Attorney General Jeff Sessions, an old-fashioned drug warrior who thinks "good people don't smoke marijuana," seemed to confirm Spicer's warning, telling reporters, "We're going to look at it...and try to adopt responsible policies."

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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 small amounts. Yet marijuana use and possession remains illegal under federal law, even in small amounts or for medical purposes.

As a practical matter, the federal government has neither the interest in policing nor the ability to police low-level infractions of federal drug laws. Limits on federal law enforcement resources mean that the Drug Enforcement Administration focuses its efforts on larger dealing and trafficking operations. This policy approach was formalized during the Obama administration in the Cole Memorandum, which clarified that the Justice Department has little interest in going after marijuana possession or sale that is compliant with state law and is not linked to interstate trafficking or sales to minors. Nonetheless, the federal prohibition casts a shadow over marijuana-related businesses and activities that have been legalized under state law.

To protect state-level reforms, Congress has enacted appropriations riders that bar the DEA from spending funds to "interfere" with state laws authorizing the cultivation, use, possession or distribution of marijuana for medical purposes. Despite Sessions's opposition, such a rider was included in the most recent spending bill that provides funding through Sept. 30.

The Appropriations Rider sends an important signal that Congress wants to allow states to allow medical marijuana, but it only goes so far. While the rider limits what the DEA can do, and was successfully invoked as a defense against prosecution in a case before the U.S. Court of Appeals for the 9th Circuit, marijuana use and possession remain illegal under federal law, and this has far-reaching implications. Marijuana reform advocates spend lots of time worrying that Sessions will find a way around the appropriations rider or depart from the set of priorities outlined in the Cole Memo. This threat is real, but other threats are greater.

The fact that marijuana possession remains illegal under federal law has far-reaching implications whether or not the DEA can raid medical marijuana dispensaries. For one thing, it means that banks cannot lawfully service marijuana businesses, as doing so means servicing a criminal enterprise. The result is that marijuana sales are conducted almost exclusively on a cash basis. (For more on the banking angle, see this excellent paper by Alabama law professor Julie Hill.) This cannot be fixed through an appropriations rider.

A bigger potential threat comes from the fact that marijuana possession and distribution are predicate offenses under the Racketeer Influenced and Corrupt Organizations Act (RICO). This means that those who produce or sell marijuana are potentially subject to civil RICO suits, whether or not such activities are legal under state law. So held the U.S. Court of Appeals for the 10th Circuit earlier this year. A federal judge once described RICO as "the monster that ate jurisprudence." Barring real reform at the federal level, it could be the monster that ate marijuana federalism, too. Here again, an appropriations rider is insufficient.

The only way to protect state-level marijuana reform efforts is to change federal law, either by ending federal marijuana prohibition or expressly allowing state reforms to proceed. Outright federal legalization of marijuana is unlikely - and might not be a good idea insofar as state-level reform efforts generate useful information about the best way for reforms to occur. Allowing different states to adopt different policies encourages policy experimentation and produces knowledge about the pros and cons of different legal regimes.

The end of federal alcohol prohibition provides a potential model for how state-level marijuana reform efforts could be allowed to proceed. After adoption of the 21st Amendment, federal law continued to prohibit the sale and distribution of alcohol where such activities remained illegal under state law. Put another way, possessing, transporting and distributing alcohol in violation of state law was itself a federal offense. This remains true today. Thus, if a business produces alcohol in one state with the intention of exporting it to another state in violation of either state's laws, it has committed a federal crime. In this way, the federal government allows each state to make its own choices with regard to alcohol policy and limits the effect one state's choices can have on its neighbors. There's no reason a similar approach would not work for marijuana.

Some opponents of state-level marijuana policy reform fear that legalizing marijuana in one state necessarily harms others. Such concerns are likely overstated, as Alabama argued in its powerful Gonzales v. Raich amicus brief, but can be addressed by limits on interstate trafficking, as has been done with alcohol. Marijuana would not be the first product to be legal in some states but not in others, and there's no reason the traditional federalism principles are not equally applicable here. Perhaps Congress should give it a try.

Note: For those interested in this issue, I'll be participating in a panel on Wednesday in Burlington, Vt., "Has Federalism Gone to Pot?" sponsored by the Federalist Society. Here also is my Introduction to a 2014 symposium on the subject, published in the Case Western Reserve Law Review.

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Opinion | Will marijuana make federalism go up in smoke?

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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.

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Analysis- What side of the argument do you most agree with? Defend your argument with facts from your research.

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Analysis- What side of the argument do you most agree with? Defend your argument with facts from your research.

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I believe it should be more of a state issue not a federal issue, which of course state leaders should know their residents more than the federal government if they believe that the legalization of marijuana wont be a problem in their state therefore they should make it a state issue if there is a problem.

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What are the main points for this to remain a state issue? a federal issue?

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What are the main points for this to remain a state issue? a federal issue?

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“The president believes that this is a states’ rights issue,” said White House spokesman Sean Spicer, “We are a states’ rights party. believing that these issues are states’ rights issues.”  The legalization of marijuana should be a state issue as long as they meet the criteria. Federal law makes it legal so the marijuana business cannot claim certain tax deductions.

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How did the use of recreational marijuana become an issue of Federalism?

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How did the use of recreational marijuana become an issue of Federalism?

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The use of recreational marijuana became an issue for federalism because it is still considered a illegal under federal law, even if a state legalizes it or not. Banks cannot support big marijuana businesses because it is a federal crime.

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Federalism is a type of government in which the power is divided between the national government and other governmental units. It contrasts with a unitary government, in which a central authority holds the power, and a confederation, in which states, for example, are clearly dominant.