- - Tuesday, January 23, 2018

ANALYSIS/OPINION:

Early in the Reagan administration, legal advisers from all the agencies were brought into a meeting at the White House. Copies of an executive order from the new president were circulated to each.

They all assumed it was a first draft. So they all took out their pens and started marking it up, representing the interests of their agency concerning what a final draft should say. They were each shocked when they got to the end, and found that it was already signed by President Reagan.

The executive order addressed the issue of federalism, which refers to the doctrine that power, authority and funding should flow down to the 50 states. Previously, the trend in the 20th century had been the opposite, centralizing power, authority and money in Washington.

But federalism was so important to Mr. Reagan, that he was not interested in hearing what his executive branch agencies thought about it by circulating a draft to them first. His executive order commanded the agencies to follow the principles of federalism in every decision they made, favoring more power, authority and funding down to the states unless there was an overriding reason to the contrary.

That is the same position that candidate Trump took during the 2016 election. Federalism allows the 50 states to conduct 50 experiments on any issue, and political competition among the states will push them to all adopt what is proven to work best. Of course, the 50 states vary a lot on local conditions and preferences, so federalism allows each state to adopt what would work best for them.

That is why Mr. Reagan, and now President Trump, and the Founding Fathers of America, who designed the Constitution on the principles of federalism, all have favored it. Mr. Trump has emphasized federalism on the issue of medical marijuana in particular.

Mr. Trump said at a rally in Nevada as early as October 2015, “I know people who are very, very sick and for whatever reason the marijuana really helps them — but in terms of marijuana and legalization, I think that should be a state issue, state-by-state.” Marijuana has proven very effective medically especially for people suffering from chronic pain, particularly people whose pain cannot be relieved otherwise.

Even for recreational use, Mr. Trump favored the states to decide on complete legalization. In February 2017, Mr. Trump said on a Colorado TV station, “I think it’s up to the states. I’m a states person. I think it should be up to the states, absolutely.”

On medical marijuana, 29 states plus the District of Columbia have already legalized it. In 2014, Rep. Dana Rohrabacher first inserted an amendment into a federal spending bill to prevent the Justice Dept. from prosecuting medical marijuana businesses that comply with their state’s laws, while outdated federal law still bans it.

But in May, Mr. Trump’s Attorney General Jeff Sessions sent a letter to Congress demanding that Mr. Rohrabacher’s funding rider be eliminated. Mr. Sessions said it was his duty to enforce supreme federal law under the rule of law, even though the federal Controlled Substances Act is “a woefully out-of-date law that says marijuana is as addictive as heroin and has no medical value,” in the words of a Los Angeles Times editorial.

But Mr. Sessions is acting contrary to what is now Republican Party principle. The Party platform states, “Federalism is a cornerstone of our constitutional system. Every violation of state sovereignty by federal officials is an assault on the liberties of individual Americans. Hence, the promise of the Tenth Amendment.”

Indeed, in May House Minority Leader Nancy Pelosi joined Speaker Paul Ryan in a joint press release, “Federalism is not a Republican or a Democrat principle, but an American principle — and one that is integral to a thriving culture and economy. But in recent years, the principle of federalism has been slowly chipped away by an overzealous federal government.”

This is in accord today with bipartisan public opinion on medical marijuana. An August 2017 Quinnipiac poll found Americans favoring state control over medical marijuana laws by an overwhelming 94 percent to 4 percent, including 90 percent to 7 percent for Republicans.

Indeed, the poll found Americans favoring complete state legalization of marijuana 75 percent to 20 percent. An October Gallup poll found 64 percent favoring state legalization, up from 12 percent in 1969, when Gallup first started polling the question. Gallup found a majority of Republicans (51 percent) now favoring state legalization as well.

So Mr. Trump has both principle and public opinion behind him. Mr. Sessions should follow his boss’s lead.

Peter Ferrara is a senior fellow at the Heartland Institute and a senior policy adviser to the National Taxpayer Legal Foundation.


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