This article first appeared on the Cato Institute site.
Attorney General Jeff Sessions announced on January 4 that the Department of Justice rescinded the “ Cole Memo ” and other internal enforcement guidelines from the Obama Administration that deprioritized enforcement of federal marijuana prohibition against individuals and businesses complying with state laws regarding recreational marijuana.
This move endangers state-legal businesses and violates the principle of federalism that has been central to the Republican Party for decades.
This was made possible, in part, by the failure of the judiciary to rein in the power of an overzealous federal government.
The Supreme Court has twice approved of this type of overreach. In Wickard v. Filburn (1942) and Gonzales v. Raich (2005), the Court ruled that individuals growing crops exclusively for personal consumption—wheat and marijuana, respectively—could be regulated by the interstate commerce clause of the U.S. Constitution, despite the crops never entering a market of any kind, let alone across state lines.
While the average marijuana consumer is not going to be targeted or arrested by the federal government, business owners directly and indirectly involved in state-legal recreational marijuana distribution may see their freedoms and livelihoods threatened by this action.
Put simply, the DOJ is using the criminal law to trample on state prerogatives and individual rights.
My colleague Jeffrey Miron has also commented on this unfortunate development. For more on how Republicans could more responsibly handle federal marijuana policy, see here and here.
Jonathan Blanks is a Research Associate in Cato’s Project on Criminal Justice and a Writer in Residence at Harvard University’s Fair Punishment Project.