A minor panic broke out yesterday after it was reported in the press that federal law might be more conscientiously enforced. Attorney General Jeff Sessions, it was confirmed, had rescinded the “Cole Memo,” an Obama-era rule that ostensibly laid out how U.S. attorneys should prioritize the enforcement of the federal marijuana laws but, in practice, led to the willful neglect of those states that have legalized the drug. By nixing the memo, Sessions has freed up his attorneys to prosecute businesses and individuals that violate federal rules.
What this will mean in practice has not yet become clear. Perhaps, given the scant resources under Sessions’s command, there will be no real change at all. Perhaps, given his expressed dislike of marijuana, we will see a more dramatic alteration of priorities. Regardless, the criticism attached to the change has been aimed squarely at the wrong branch. Under Article II, the executive is obliged to “take care that the laws be faithfully executed,” and, under federal law, marijuana remains prohibited. Using prosecutorial discretion as a smokescreen for nullification is not our definition of “faithful,” however misguided the legislature’s will might be.
Cory Gardner, a Republican senator from Colorado, had harsh words for Sessions. “With no prior notice to Congress,” Gardner griped, “the Justice Department has trampled on the will of the voters in [Colorado] and other states.” This critique rings hollow. It was Congress that established this law, and it is Congress that must repeal it. Indeed, if anyone is “trampling,” it is the legislature of which Gardner is a part. We have long argued that the prohibition of weed is a fool’s game, and we have long urged that it be ended. We have held to this view through a host of administrations, and we hold to this view today. Nevertheless, we believe also that the Constitution must be strictly obeyed, and that congressional inaction presents no magic veto power to the executive. This, put simply, is not Jeff Sessions’s call.
Ultimately, this is a debate that belongs at the state level, far away from Washington, D.C., and the ping-ponging attitudes of transient attorneys general. Because Colorado is not Alabama, and Idaho is not Florida, there is no compelling case for a nationwide approach. Judging by the reaction that today’s announcement yielded, a number of legislators seem strongly to agree. We applaud their commitment to federalism and to reform. We’ll applaud them more loudly when they pass their griping into law.
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