New DOJ marijuana policy sparks latest clash over states’ rights

Published: Jan 8, 2018, 1:15 pm • Updated: Jan 8, 2018, 3:43 pm

By Sudhin Thanawala, Ryan J. Foley and Geoff Mulvihill

SAN FRANCISCO — The decision by Attorney General Jeff Sessions to rescind an Obama-era policy on federal marijuana enforcement sparked an outcry from Republicans and Democrats.

They argue that Sessions is trampling on the rights of states that have decided to legalize pot for medical or recreational use, or both.

Marijuana remains illegal under federal law, and Sessions’ new direction lets federal prosecutors in states where marijuana is legal decide how aggressively to enforce that law.

Lawmakers and others in Democratic-leaning states have been howling over the past year about actions by the Trump administration and congressional Republicans that they say have undermined states’ rights. That includes promoting concealed carry legislation and attacking sanctuary status for immigrants to this week’s decisions on legalized marijuana and offshore oil drilling.

But it wasn’t too long ago that the shoe was on the other foot, with Republican states pushing back against the Obama administration’s intrusions on issues such as transgender rights and environmental regulation.

Promoting the constitutional protections for states’ rights — outlined in the 10th Amendment to the U.S. Constitution — has always been popular among politicians. But it also is situational. Recent history shows that how strongly a party feels about states’ rights can depend on whether it’s in power and how a specific policy affects other constitutional rights.

There’s been a steady flow of lawsuits from mostly Democratic-controlled states opposing Trump administration policies, partly on states’ rights grounds. That follows a pattern set by Republican-led states, which repeatedly sued the Obama administration.

Here’s how marijuana legalization fits into this latest chapter in states’ rights battles:

The legalization push

Federal law classifies marijuana, heroin and LSD among the most dangerous drugs, with no currently accepted medical use and a high potential for abuse. Efforts to change that classification have failed. A federal judge in California in 2015 considered the issue, but then decided it was up to Congress to change the law if it wishes.

An increasing number of states, meanwhile, have legalized marijuana. California led the way in 1996, when voters approved marijuana for medical use. Colorado and Washington became the first two states to legalize recreational marijuana with voter-approved measures in 2012. Eight states, including California, have now legalized marijuana for recreational use and more than 30 have medical marijuana programs.

Critics of Sessions’ decision, including members of the Republican Party, say the federal government should respect the wishes of local voters and stay out of states’ marijuana choices. They cite the 10th amendment to the U.S. Constitution, which says states have all powers that the constitution does not delegate to the U.S. government or deny them.

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“Today’s decision announced by the Department of Justice is a direct violation of states’ rights,” said U.S. Rep. Don Young, R-Alaska. Alaska allows recreational marijuana use. Republican U.S. Sen. Cory Gardner from Colorado said he’s placing a hold on Justice Department nominees in response to Sessions’ decision and will try to push legislation to protect marijuana sales in states where they are legal.

“With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states,” he said in a Tweet.

State and federal law clash:

Marijuana’s status as an illegal drug under federal law has led to the prosecution of growers and dispensaries that appear to be operating legally under state law, and Sessions’ announcement is raising fears of a possible renewed crackdown.

“The states can enact their own laws, but the federal government can say, ‘We’re going to prosecute people and businesses,’” said Alex Kreit, a marijuana law expert at the Thomas Jefferson School of Law in San Diego. The U.S. Supreme Court in a 2005 ruling said the federal government could prosecute medical marijuana possession in states that had legalized the drug for medical use.

In 2011, California’s four U.S. attorneys announced that they were going after the state’s “widespread and illegal marijuana industry.” Prosecutors threatened landlords with prosecution unless they evicted tenants who were supplying marijuana and moved to seize properties where the drug was sold.

The DOJ under former President Barack Obama said in 2013 it wouldn’t interfere with state marijuana laws as long as the states tightly regulated the drug and made efforts to keep it from children, criminal drug cartels and other states.

Still, pot prosecutions continued.

Congress steps in:

In 2014, Obama signed into law a congressional amendment that said the DOJ could not use money allocated by Congress to prevent states that have legalized medical marijuana from implementing laws that permit its use, distribution and possession. A federal appeals court that covers much of the Western U.S. ruled two years ago that the law banned the DOJ from going after medical marijuana users and dispensaries in cases where no state laws were broken. The decision by the 9th U.S. Circuit Court of Appeals covered California, Washington and seven other states.

While the ruling could complicate efforts to ramp up marijuana prosecutions in those states, it’s far from a panacea for marijuana dispensaries and users. Kreit said the amendment only applies to medical marijuana, so recreational users and businesses are not protected. Additionally, the protection for medical marijuana disappears if the amendment is not renewed.

U.S. Rep. Dana Rohrabacher, a Republican from California who co-sponsored the medical marijuana amendment, said during a conference call with reporters on Thursday that Sessions’ decision would create momentum for a law that wouldn’t have to be constantly renewed and would protect “all of the decisions” states make about marijuana.

The federal government’s position on state laws legalizing marijuana is only the latest high-profile states’ rights fight. Following is a look at some current and recent battles involving states’ rights arguments:

Concealed carry

The GOP-controlled U.S. House of Representatives voted largely along party lines last month to pass the Concealed Carry Reciprocity Act, which would prevent states from enforcing their own handgun permit laws against out-of-state visitors.

The measure, which is expected to be debated in the Senate this year, declares that citizens with valid state permits to carry concealed handguns — as well as those who live in several other states that don’t require permits to carry — can travel with their weapons nationwide without fear of prosecution.

Critics of the bill, including many Democrats and public safety professionals, argue that the measure is a blatant attack on the rights of states, which currently have the ability to choose which out-of-state permits to recognize.

They warn that popular tourist areas in states with strict gun laws, like New York City, could see a surge of people carrying loaded weapons. Supporters of the bill say the hodgepodge of state laws undermines the constitutional right to bear arms for self-defense.

Sanctuary states and cities

The Trump administration has threatened to withhold funding from states and cities that offer sanctuary status to immigrants, arguing that localities must cooperate with federal efforts to identify and remove those in the country illegally. Trump and Attorney General Jeff Sessions argue that the sanctuary approach to immigrants allows some criminals to be released instead of shipped back to their homelands.

But supporters of sanctuary policies say state and local officials should be allowed to decide how to treat non-citizens in their communities and how to best use their policing resources.

They argue that such jurisdictions have lower rates of crime and improved safety because immigrants who are victims or witnesses of crimes can report them without fear of deportation.

In November, a federal judge issued an injunction blocking Trump’s executive order that had directed the government to make sanctuary cities ineligible for federal grants. The decision said Trump’s order would “violate the Tenth Amendment’s prohibition against commandeering local jurisdictions” and other parts of the Constitution.

Oil drilling

Some Republican and Democratic governors of coastal states have spoken in opposition to Trump’s plan announced this week, to allow oil drilling in the Arctic and off the Pacific and Atlantic coasts.

The areas that would be opened are all federal waters — generally starting 3 miles off the coast — and several of them have been closed to drilling for decades.

State officials have warned of risks to their environments and tourism if drilling is allowed. Florida Gov. Rick Scott, a Republican, said he opposes drilling off his state’s coast and wants Florida withdrawn from consideration of new leases. Maryland’s Larry Hogan, another Republican, said he also opposes drilling off his state.

California Attorney General Xavier Becerra, a Democrat, said that state regulatory agencies will have a say in whether offshore drilling is allowed. If the federal government disagrees with that, it could set up another states’ rights legal dispute.

Election commission

In another development this week, Trump disbanded a commission he assembled last year to investigate voter fraud in the 2016 elections, something he asserts without evidence cost him the popular vote.

State election officials of both parties bristled last year when the commission asked for detailed voter information, including names, partial social security numbers, party affiliations and voters’ history of participating in elections.

Some states sued over the request. Even after the administration clarified that it was asking only for information that states considered public, more than a dozen still refused to comply, including several Republican-leaning states.

Part of their argument was that running elections is the business of the states, not the federal government.

Gay marriage

Opponents of marriage rights for gays and lesbians argued for years that the policy should be left to the states to decide. They argued that state lawmakers, not judges or Congress, were best positioned to decide whether to sanction such relationships in any given state.

Dozens of states voted to amend their constitutions to outlaw same-sex unions, while courts and lawmakers in others started to legalize the relationships. Supporters of same-sex marriage argued that the bans were unfair, calling the issue a matter of equality that should not be left to the whims of popular opinion.

The U.S. Supreme Court agreed in a landmark 2015 ruling, finding that the Constitution requires states to issue same-sex marriage licenses and to recognize those licensed in other states.

The court rejected arguments from Kentucky, Michigan, Ohio and Tennessee, which sought to preserve their state laws defining marriage as between one man and one woman.

Topics: cole memo, federal enforcement, Jeff Sessions, state vs federal, states rights