photo courtesy the Federal Bureau of Investigation
Much as many would like to deny it, no state has “legalized” marijuana for any purpose. States simply don’t have that power.
States can take some or all uses of pot off their own criminal statutes, of course, and have. But short of secession (and we have literally fought that war already), they can’t change the federal law that lists marijuana as a Schedule I drug. Only Congress can do that, by amending the Controlled Substances Act.
The outcry over Attorney General Jeff Sessions’ announced position on marijuana enforcement, therefore, is as misdirected as it is politically motivated.
California – the latest state to try to legalize recreational pot use – remains part of the Union, as do Washington, Colorado, Nevada and the other four states that ostensibly permit their residents to legally sell, possess and use pot for various purposes. An additional 14 states have decriminalized nonmedicinal uses for cannabis, largely under the seemingly protective umbrella of the 2013 Cole Memorandum.
The memo, written by Deputy Attorney General James M. Cole, was never intended as a permanent solution to the conflict between federal marijuana policy and the patchwork of state laws. Instead, it was a stopgap measure that gave U.S. attorneys the latitude to, essentially, ignore federal law in states allowing medicinal and recreational marijuana use. Sessions’ decision to rescind the Cole memo did not change the existing law, but it did trigger an outcry from members of Congress and the marijuana industry alike at the prospect of resumed enforcement.
For what it’s worth, I think the existing federal law on marijuana is misguided and counterproductive. If Californians agree, they can ask their largest-in-the-nation congressional delegation to push to fix it. This is an area where there is actually room for bipartisan cooperation. For instance, Sen. Cory Gardner, R-Colo., was one of the loudest voices protesting Sessions’ action. But instead of using their power to amend the Controlled Substances Act and solve the problem outright, many lawmakers are fixated on denouncing the Trump administration and resisting cooperation with federal authorities instead.
If lawmakers are as outraged with Sessions as they say they are, they have the power to change the law in question. More than half of Americans say they support legalization, with greater proportions of support among younger generations. But until Congress acts, Sessions is correct that the Controlled Substances Act means that marijuana is illegal nationwide, regardless of what state lawmakers say.
Americans, wherever they are, have a perfect right to expect federal laws to be acknowledged and enforced with reasonable fairness and efficacy, even if those laws are flawed. This principle extends beyond pot. Opposing illegal migration is not the same as opposing immigrants, much as advocates for immigrants living here without legal permission try to paint it as such.
The administration has drawn criticism for pledging to terminate Deferred Action for Childhood Arrivals after a six-month warning period that was slated to expire in March, though that timeline has become less clear in light of a federal judge’s recent ruling temporarily blocking the end of the program. But by attempting to end DACA and by ending Temporary Protected Status for migrants whose presence has been anything but temporary – witness the 200,000 Salvadorans present in the country under TPS ostensibly for “protection” from a 2001 earthquake – the administration just might free up political space to extend TPS protection to thousands of Venezuelans who desperately need it today. Critics have said that the administration should wait for Congress to provide people currently in the country a clearer path to securing permission to stay before removing these protections, but given Congress’ track record on immigration reform, such a path is not imminent.
In the situation Trump and Sessions inherited, any extension of TPS to Venezuelans would be tantamount to authorizing free and unlimited migration. Personally, I don’t have a problem with that. But that, too, is a matter for Congress to decide.
Democrats generally seem to be having trouble adjusting to a regime that seeks to uphold the rule of law rather than decreeing that the law is whatever they say it is at any given moment. By all means, let’s legalize pot and create a fair and humane immigration regime. But let’s do it the right way, in the halls of Congress, where the laws that govern all 50 states are supposed to be written.
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