- - Thursday, February 1, 2018

It is time for the real federalists in Congress to step up and stop Attorney General Jeff Sessions’ war on medical marijuana.

Veronique de Rugy wrote recently in Reason, “the Attorney General’s reversal on marijuana is out of step with states’ rights and public opinion.” The real federalists respect the idea that “it’s the essence of liberty to let people make their own decisions as long as they’re not harming others.” States that have consented to this exercise of liberty should be respected.

Now that the government shutdown is over, and Congress is staring at a new Feb. 8, 2018 deadline to fund the government, the issue is particularly urgent. The issue that stalled the last continuing resolution was a debate over DACA and funding for a wall at the southern border. One issue percolating that could become another stumbling block for the next deadline is the issue of how the federal government will treat states that have allowed medical marijuana.

With every continuing resolution, Congress has continued a funding rider that has run with appropriations bills since 2014 that allow 29 states and the District of Columbia to grow, use and distribute medical marijuana. These states have all changed the law to make medical marijuana lawful within the states’ borders.

The funding rider prevents the Justice Department from interfering with states that have consented to medical marijuana, yet Mr. Sessions has aggressively lobbied the House and Senate to strip that language from the final appropriations bill that is signed into law.

In the House, Reps. Dana Rohrabacher, California Republican, and Earl Blumenauer, Oregon Democrat, were blocked last year from offering their defunding amendment when the House considered the appropriations measure that funds the Justice Department. In the Senate, Sen. Patrick Leahy, Vermont Democrat, was successful in attaching the funding rider to the Senate appropriations measure.

The resolution of that fight has yet to be determined and Congress has yet to indicate whether it will exercise the power of the purse to continue the funding rider or allow Mr. Sessions to commence a war on medical marijuana states.

The idea of federalism dictates that all the powers not specifically enumerated for the federal government are reserved for the states. It is clear that the federal government has some jurisdiction over matters that cross state lines, yet it is also clear that activities that occur within the boundaries of a state are left to the states. Nowhere in the Constitution can anybody point to a specific enumeration that allows the Justice Department to prosecute a medical marijuana facility or user wholly within a state.

Rob Natelson of the Article V Information Center and the Independence Institute, wrote in The Hill on Aug. 1, 2017, “all students of the Constitution know it splits authority between the states and the federal government. What many do not recognize is that it deliberately divides responsibility over some closely-connected activities. For example, the Founders often observed that commerce and domestic manufacturing were tightly related. Nevertheless, their Constitution granted power over several forms of commerce to Congress, but left authority over manufacturing to the states. The founders divided authority this way because protecting liberty was a higher priority than regulatory coordination.”

One could argue that it is unconstitutional for the Justice Department to use federal power to stop and activity that does not cross the state border.

Mr. Natelson concluded that the Commerce Clause power does not extend to the agricultural aspect of growing medical marijuana nor a ban on personal consumption, because our Founders wanted these regulations to come from the states.

“Under the original Constitution as ratified by the American people, Congress may regulate, or even ban, marijuana from interstate and foreign commerce. It also may exercise some incidental authority. But it may not constitutionally regulate or prohibit in-state growing, processing, or use of marijuana. For better or worse, those are exclusive concerns of the citizens of the several states.”

States have always exercised police powers over the citizenry and it is consistent with the idea of a democratic republic made up of states, the District of Columbia and numerous territories that power is not wholly concentrated in the federal government.

It is possible that Congress may pass another short-term continuing resolution pending another blow-up over the DACA issue, yet if Congress tries to put the funding for this fiscal year finally to bed, the issue of medical marijuana may be debated and voted on in early February.

If the Rohrabacher/Leahy approach prevails, the federal government will be prevented from interfering in state legal medical marijuana activities.

As Ms. de Rugy argued, “the House and Senate are loaded with members who have parroted talking points and claimed that they’re federalists; now we’ll see whether their action matches up with their rhetoric.”

Mr. Sessions’ attempt to restart a war on medical marijuana would offend federalism and would take away liberties granted by a medical marijuana state. Hopefully, real federalists in Congress will step up.

Beau Rothschild, the founder of Rothschild Policy and Politics, formerly served as the members outreach director for the Committee on House Administration.

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