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Drugs, Federalism, and Discretion


The new Justice Department guidelines on the prosecution of people who use or distribute marijuana for medicinal purposes has sparked at least two debates on NRO. Over at Bench Memos, Matthew Franck and Jonathan Adler are arguing about whether it is appropriate for federal law enforcement to make its prioritization decisions turn on state rather than federal law. Here in the Corner, Rick Brookhiser and Wesley Smith are at odds over whether the Justice Department has undermined the rule of law by declaring that it isn’t going federal law in some instances.

Brookhiser and Adler are on the pro-guideline side of their debates, Franck and Smith on the anti- side. I’ll take from one from column A and one from column B. It seems to me that while Smith is right that an amendment to the Controlled Substances Act would be better than these guidelines–and Brookhiser surely agrees–Smith doesn’t address the scarcity of federal law-enforcement resources. We have so many criminal laws that they cannot reasonably be equally enforced, so priorities have to be set. De-emphasizing medical marijuana is a reasonable part of that effort.

But I think Franck is right to say that the federal government should not bow to state laws that purport to nullify federal law. The guidelines ought to de-emphasize medical-marijuana prosecutions across-the-board, not just in states that have legalized the practice.


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