AG Sessions Wants to End Even the Ghost of Our Tenth Amendment.


The previous administration had been willing, re marijuana, to ease back on prosecution of cannabis possession in states legalizing it. Attorney General Sessions has reversed that policy.

The Obama DOJ policy featured the wisdom of federalism, once assured to us by 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.” That last of the 10 amendments was certainly not the least of them. Without it New York might not have ratified the new constitution hammered out four years earlier in Philadelphia. In New York, in the late 1780s, incidentally, upper-class knobs were enjoying hashish houses, though I doubt that was the main reason the state was so keen on the Amendment.

In a 1932 Court opinion, Justice Brandeis had pointed out that the genius of federalism (10th Amendment) is that it allows for the possibility “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” That was in the  New State Ice Co. case (p 311).

The Marijuana Tax Act of 1937, imposed onerous requirements and taxes on possessing and transporting it.  In 1937 they couldn’t ban cannabis outright, because of the 10th Amendment, but they could suppress it with a “tax statute.”  That law was ended with the adoption in 1970 by Congress of the Comprehensive Drug Abuse Prevention and Control Act. How could Congress do that?

In 1942, an activist Supreme Court favored the New Deal move to control wheat prices. There were limits on wheat production to keep prices up. Ohio farmer, Roscoe Filburn, grew wheat to feed his livestock. Trouble was, he grew more than the law allowed and they whacked him with a big fine.. He argued logically he wasn’t selling his wheat, so how could Congress impose interstate commerce regulations on him?  That was easy for the Court. They just changed the plain meaning of the commerce clause. That clause gave Congress the power “To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.”   Now the court said  “interstate commerce” includes any activity within a state that might affect interstate commerce, even if only indirectly.

With the Filburn case and others like it, Congress knew in 1970 they were free to regulate anything that moved and most of what didn’t. They said let the war on drugs begin.

It seemed to many the states were still free to adopt their own cannabis laws and in 1996 California passed its medical marijuana law.  It was plausible still that certain activities carried on wholly within the state would not invite federal prosecution. Wrong! In 2005, Gonzales vs. Raich upheld Congress’s ban of marijuana as a Schedule I drug. Ms. Raich’s California doctor had testified she was allergic to all the other pain medications he’d tried and without marijuana her life was at risk. She was complying with state law, but the Court ruled Congress’s power to regulate interstate commerce included the power to criminalize Raich’s right to grow it in her own home for her own use.

In a dissenting opinion, Justice Clarence Thomas nailed it.  “This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce—not to mention a host of local activities, like mere drug possession, that are not commercial.” (Emphasis added)

The Raich case had become the law of the land after a number of states had followed California. Now, we had an embarrassing conflict between the justice department and those states. The Obama DOJ decided to just look the other way and let the states handle low level violations. But, now we’ve been whiplashed by Sessions.  Although he left discretion in the hands of regional U.S. Attorneys to take into consideration community interests, when deciding whether to prosecute, we could see some ugly arrests in states with people like Sessions, so uninformed they think marijuana users are bad people.

Sessions argues he is doing his duty to enforce existing law. Oh, right. This was an important priority. Really? With all the demands on the DOJ, why all of a sudden change the prosecution policies on marijuana? Why precipitate conflict between the states and Washington on this issue? Why stomp on what little is left of the spirit of the 10th Amendment, a good-hearted ghost that helps us in so many ways?

Still there may be a silver lining.  Sen. Cory Gardner (R., Colo.) has announced he will fight back. He says Sessions had assured him the Trump administration was not going after cannabis. There are other congressmen, too, of both parties who are talking about Congressional action to change the law. How about forwarding this blog to your Congressman.

© Rights reserved to Dave Finch 1/8/2018

A far more sensible drug policy than prohibition is outlined at my Reform Drug Policy Project, and the Second Edition of my book, Kill the Drug Trade details it.

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