Under the Obama administration, the Department of Justice (DOJ) issued a memorandum advising federal prosecutors to focus enforcement priorities relating to marijuana on “the most significant threats.” Those include preventing distribution to minors; sales revenue from going to criminal enterprises, gangs, and cartels; violence and use of firearms; and drugged driving.
But the confirmation of U.S. Attorney General Jeff Sessions, a noted critic of marijuana, sparked concerns about a federal crackdown in California and other states that have legalized some form of the drug.
Jolene Forman ’12, an attorney at Drug Policy Alliance (DPA), says states are well within their rights to legalize marijuana activities such as possession, use, sharing, transport, and cultivation. Under the Tenth Amendment’s anti-commandeering doctrine, the federal government cannot order states to criminalize marijuana or compel state police to enforce federal law. Therefore, in California, Proposition 64’s legalization provisions appear safe from federal challenge.
Forman, who co-authored the article “Cooperative Federalism and Marijuana Regulation” with renowned constitutional scholar and new Berkeley Law Dean Erwin Chemerinsky and others, says Sessions may try to ramp up enforcement of federal marijuana laws. However, she believes doing so would counter federal interests.
“The federal government can enforce federal law against individual marijuana businesses, which may have a chilling effect,” says Forman. “But it has neither the political support nor the financial or personnel resources to stamp out every marijuana business operating in compliance with state law.”
According to recent Gallup polls, more than 60 percent of national voters support states’ rights to legally regulate and control marijuana. Moreover, reports conducted by the DPA, Cato Institute, and Brookings have found legalization policies to be effective so far.
“By shifting away from counterproductive marijuana arrests and focusing instead on public health, states that have legalized marijuana are diminishing many of the worst harms of the war on drugs while managing to raise substantial tax revenues,” Forman says.
Legally regulating and controlling marijuana “enables the state to set product safety standards and restrict youth access,” she adds, noting how such states are seeing a sharp decrease in marijuana arrests and convictions. During the same period, these states have not experienced increases in youth use or traffic fatality rates. “It’s too soon to draw definitive conclusions, but the evidence so far clearly shows that the worst fears of legalization opponents have not come to pass,” Forman says.
Joy Haviland ’08, Forman’s DPA colleague, believes the federal government’s limited resources would be better allocated for more pressing issues.
“Every dollar spent by the Sessions DOJ going after marijuana businesses is money and resources that could be used on other important DOJ programs and priorities,” she says.