Businesses take the risks of violating federal law to supply and operate the outlets where marijuana is sold because Congress passes an amendment to spending legislation each year that says the federal government won’t prosecute state-authorized merchants.
The process had become almost routine since 2014, when Rep. Dana Rohrabacher of California, a conservative Republican who favors decriminalizing marijuana, began to propose the amendment.
It allowed Congress to avoid a messy debate and let states create the momentum for federal reform. But then Donald TrumpDonald TrumpJan. 6 committee chair says panel will issue a 'good number' of additional subpoenas Overnight Defense & National Security — Presented by AM General — Pentagon officials prepare for grilling Biden nominates head of Africa CDC to lead global AIDS response MORE became president and Jeff SessionsJefferson (Jeff) Beauregard SessionsOvernight Hillicon Valley — Apple issues security update against spyware vulnerability Stanford professors ask DOJ to stop looking for Chinese spies at universities in US Overnight Energy & Environment — Democrats detail clean electricity program MORE became attorney general. The week after Labor Day, the bipartisan amendment was pulled from the budget bill at the request of the administration.
Now the industry is worried. Trump vowed after signing the continuing resolution that’s now keeping the government open to treat the marijuana amendment “consistently with my constitutional responsibility to take care that the laws be faithfully executed,” meaning he was willing to perhaps prosecute those in the medical marijuana industry.
He campaigned on fighting the opioid epidemic and getting tough on drugs, and his calls for getting tough on the border center on preventing drugs as well as illegal immigrants from coming in.
But he mentioned at a rally in Nevada that he knew people who “are very, very sick and for whatever reason the marijuana really helps them” and promised on the campaign trail to “make marijuana widely available to patients, and allow states to decide if they want to fully legalize pot or not.”
Sessions has no such soft spot for marijuana. He is one the most hard-line marijuana foes in American public life today — and he wants to enforce the law as written if not strengthen it.
The new bipartisan Congressional Cannabis Caucus is pushing to revive the rider, but more needs to be done. Several proposals are floating to decriminalize marijuana in federal statute or make it permanent that those involved in the legal trade within states will not be prosecuted.
Marijuana has been regulated by the federal government since 1937, when Congress passed the Marijuana Tax Act. It, along with the Harrison Narcotic Act passed in 1914, prohibited morphine, heroin, marijuana and other drugs. Congress created the marijuana law as a tax because taxing and regulating were considered less susceptible to legal challenge than outright prohibition.
In 1970, Congress passed the Controlled Substances Act, which changed how drugs were classified and classified marijuana — along with heroin, cocaine and other hard drugs — as a Schedule 1 drug, the schedule for drugs with no medical use and high potential for abuse.
This had little to do with science — a commission only two years later would recommend removing marijuana from this list — and almost everything to do with the fact President Nixon associated it with hippies, and he did not like hippies.
Police still make nearly 700,000 arrests per year for marijuana — about 42 percent of all drug arrests — and spend $3 billion annually on enforcement. Of those arrested, 85 percent are for simple possession of personal amounts, and disproportionate numbers are African-American or Latino even though they use or sell marijuana at the same rate as white people.
Support for decriminalization is building. More than 80 percent of Americans believe at least medical marijuana should be available. States, which have been experimenting with decriminalization since the 1970s, have embraced even recreational use for adults in some cases as the list of uses have grown and list of threats from the drug have declined.
At this point, enough Americans have tried it without disastrous results that there is a growing consensus that decisions on its legality at the least ought not be made in Washington.
The Constitution clearly does not require Washington to make the rules on marijuana. The Republican Party platform calls federalism “a cornerstone of our constitutional system” and says every violation of state sovereignty by federal officials “is not merely a transgression of one unit of government against another; it is an assault on the liberties of individual Americans.”
How about Republicans live up to their commendable rhetoric on federalism, pass the amendment before it expires in early December, search for a more permanent solution and the administration live up to its promise to make medical marijuana widely available. Then, have Jeff Sessions make the case against decriminalization. If he has a point, states will know what to do about it.
Brian McNicoll is a former director of communications for the House Committee on Oversight and Government Reform and a former senior writer for the conservative Heritage Foundation.