Jeff Sessions, Donald Trump’s choice for US Attorney General, has the potential to threaten recent gains in state-level opposition to federal laws. As an enthusiastic supporter of the Drug War — if he is confirmed as Attorney General — Sessions will be in a position to clamp down on statewide efforts to legalize marijuana by utilizing state-level nullification strategies.
By: Ryan McMaken
This article first appeared at Mises.org
Following years of gains for medicinal marijuana, advocates took the battle against federal prohibition to a new level in 2012 when voters in Colorado and Washington State approved the legalization of recreational marijuana use and possession. Since then, several more states have joined in bringing the total number of citizens within these marijuana-legalizing states to over 63 million people.
In short, states have decided to unilaterally declare themselves non-participants in the feds’ war on marijuana, and the effort has proven to be unexpectedly successful at curtailing federal power. In many ways, these state-level efforts to ignore and nullify federal law are an echo of the efforts by the abolitionists of old who refused to enforce federal fugitive slave laws. They also reflect Thomas Jefferson’s conviction that state-level nullification of federal laws is one of the few meaningful checks that states can place on federal power.
Thus, although it was probably not the intent of the anti-Drug-War advocates to do so, the overturning of some aspects of the war on drugs at the state level has greatly raised both the profile and the plausibility of opposing federal law through localized opposition.
Moreover, it was this sort of state-level action that that set the stage for the end to the the federal prohibition on medical marijuana that took place in 2014. It was only after state-level efforts took shape that the federal government’s hand was largely forced in the matter. This, by the way, all came after decades of efforts by pro-centralization anti-drug-war activists who insisted that the most effective method would be to go through Congress and the federal government. The success of the state-level Drug-War reform movement has illustrated that true reform is at least as likely to begin at the state and local level, and work its way up.
Unfortunately, Jeff Sessions stands poised to undo much of the progress that has been made in this area.
As a committed Drug War advocate, it is entirely plausible, and perhaps even likely, that Sessions will use his power as AG to sue, browbeat, and threaten states that dare oppose federal law. As Ron Paul recently observed, the broad powers enjoyed by the federal government today mean Sessions will be able to “threaten governors,” “deny funds” to states, and sue the states in a variety of ways should they not follow Session’s lead on the Drug War. Indeed, as Paul notes, Sessions has gone so far as to press for Congressional rules limiting Congress’s ability to curtail taxpayer money being spent on Drug War measures. In other words, Sessions is so gung-ho on the Drug War, he has fought to empower the federal executive branch over both Congress and the states themselves.
The Broader Importance of Ending the Feds’ War on Drugs
None of this bodes well for friends of private property, federalism, and local soveriegnty of course, but it’s significant because, legally speaking, state drug laws have become a linchpin in arguments over federal supremacy.
This became apparent in 2015 when the Republican attorneys general of Nebraska and Oklahoma sued Colorado in federal court for legalizing marijuana and pressed to greatly expand the power of the federal government over state laws. As Slate noted at the time: “The attorneys general of Nebraska and Oklahoma have decided that they should have a say over what happens in the state of Colorado…they are arguing that Congress’s prohibition against marijuana should force every state to prohibit it as well.” In other words, these Republicans want federal courts to declare all federal laws to be universal in every state. This would essentially destroy the last few remnants of federalism still extant in the American political system, but some GOP politicians are so enamored of the Drug War, that the rule of law remains a mere inconvenience to them.
Whether or not the Trump Administration would have any problem with this remains to be seen. In fact, one of the two attorneys general that sued Colorado — Scott Pruitt of Oklahoma — has been nominated for a cabinet position, further solidifying suspicions that Trump has little problem with an Attorney General who will seek to impose federal laws on states with ever greater force.
Even worse is the fact that, thanks to permissive federal laws in regards to autonomy for the Department of Justice, much of this issue will come down to the personal preferences of the sitting Attorney General. For the past several years, the states have been allowed a certain amount of leeway on this manner thanks to the Obama Administration uncharacteristically looking the other way while states did their own thing. In March of 2016, for example, the Obama Administration actively discouraged the Supreme Court from taking up the Nebraska-Oklahoma lawsuit, essentially killing the effort. Now, with someone like Sessions in office, the opponents of decentralization and local autonomy may get their chance to strike after all.
This article first appeared at Mises.org