In my latest Bloomberg View column, I take the same basic view of the Justice Department’s announcement on enforcing the marijuana laws that Kevin Williamson does: The problem is the laws, not Sessions’s obedience to them. One point of difference: I have a more positive view of the Supreme Court’s decision that Congress can set a national policy on marijuana.
Justice Antonin Scalia, concurring in the decision, started from the premise that the federal government has the power to prohibit commerce in marijuana among the states. “Where necessary to make a regulation of interstate commerce effective,” he reasoned, “Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”
The court probably got the case right. How heavily the federal government has to be involved to stop interstate commerce in marijuana is a practical legislative judgment about which the courts have no special expertise or authority.
In deferring to Congress, the court left it open to legislators to revise that judgment. If Cory Gardner and Nancy Pelosi want the federal government to leave most of this field to the states, their proper course is not to make life difficult for the Justice Department until it agrees to stop enforcing the laws Congress has enacted. It’s to change those laws.