For years, libertarian conservatives have helped drive marijuana policy closer toward decriminalization and, in some cases, even legalization. They’ve argued the case on a number of fronts, from federalism and states’ rights to rapid changes in public opinion to the need for individual privacy.
Last week, the Trump administration outlined a change that could potentially signal an oncoming crackdown.
Attorney General Jeff Sessions announced on Wednesday that the administration would withdraw the Cole Memo, which provided some protection for state-level marijuana businesses from federal intervention, and other guidance related to marijuana policy. Advocates predict it will set back their movement, but the full implications of the changes aren’t known yet. In some respects, the move isn’t a total surprise, given Sessions’s longtime opposition to marijuana legalization, which worried advocates as soon as he was nominated to run the DOJ.
“Even if it’s not out of line with what [marijuana] advocates saw coming, it’s still a step in precisely the wrong direction,” Robby Soave, associate editor at Reason Magazine, a libertarian publication based in Washington, DC, told me.
“It’s remarkable: This is an open-and-shut issue for liberals, for libertarians, for young people, even for a lot of conservatives and Trump voters. They may not all like weed, but they are coming around to the position that banning it isn’t worth the effort, and in any case, this should be up to the states. Sessions’s crusade against drugs is quixotic and out of step with this.”
Sessions’s decision represents a fundamental question about the Trump administration and its approach to policymaking: How do we know what President Trump really believes — and, more importantly, what he will make into a concrete strategy? On the campaign trail, Trump outlined a number of left-leaning policy preferences — from keeping Medicaid in place to repeatedly stating his support for efforts to leave marijuana policy to the states. But in office, he’s put in place Cabinet officials who want to implement the very opposite, much to the disappointment of many within his own party.
For many, the move from Sessions and the Justice Department is at best frustrating and worst an outright betrayal, especially for libertarians and conservatives who think a federal crackdown on a substance a majority of Republicans support legalizing is a massive step backward, and that marijuana can be the issue to get liberals on the side of federalism and the power of state government. Sen. Cory Gardner (R-CO) has promised to block all Justice Department nominations until he receives confirmation that Colorado’s marijuana policy will be able to stay in place — and he’s the chair of the National Republican Senate Committee.
For conservatives and libertarians, marijuana can be a complicated issue
Marijuana policy has become a complex touchstone for conservatives, especially in the post-Obama era.
Many feel, for example, that Barack Obama’s handling of the issue of marijuana decriminalization represented his abuse of executive action. Obama used executive orders and memos (like the Cole Memo) to discourage the Department of Justice and FBI from taking action against state-level marijuana growers, dispensaries, and users, recognizing that the disparities between public opinion, state law, and federal policy.
He told NBC in 2012, “This is a tough problem, because Congress has not yet changed the law. I head up the executive branch; we’re supposed to be carrying out laws. And so what we’re going to need to have is a conversation about, How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?”
As David French argued in National Review on Thursday, Sessions’s actions are “a restoration of the rule of law and the end of yet another unconstitutional Obama policy that privileged executive power over the American constitutional structure.”
Still, many conservatives agree with the policy itself for a variety of reasons.
French states in the very same piece that marijuana should be decriminalized, full stop, through legislation introduced in Congress. “Simply put, we need fewer criminal statutes and fewer prisoners.”
To many Republicans, marijuana is a state-level issue that should be handled by state-level legislation — and voters. As conservative commentator Erick Erickson wrote recently, “The solution here is not to ignore the federal law, but to repeal it. To do otherwise empowers individuals beyond the rule of law and puts the whims of officials ahead of the will of the people.”
“People on the left should be aware that their state-level priorities can be overwritten”
I spoke with Charles C.W. Cooke, editor of National Review Online, about conservative views on marijuana policy. He said that Jeff Sessions as attorney general should make it clear that relying on the federal government has its drawbacks.
“People on the left should be aware that their state-level priorities can be overwritten, much as conservatives can have their state-level priorities overwritten,” he said. In short, the same federal government that could, for instance, refuse to defend the Defense of Marriage Act in court in 2011 could also raid law-abiding marijuana dispensaries in Aspen, Colorado, in 2018.
Cooke added that he found it strange how many Republicans who decry expensive federal programs and the intervention of big government into the private lives of everyday citizens had stayed silent on the war on drugs.
“This is a large government program. It hasn’t worked. Most people can see that marijuana is not in any meaningful way prohibited,” he said.
He pointed to the success of programs in Oregon and California, where anti-reformers’ worst fears haven’t come to pass.
“I see conservatives’ greatest contribution to American politics as being their willingness to step in where programs are not working and say so,” he said. “Whether that’s gun control or welfare or high taxes, they’ve often fought those fights. And yet for some reason when it comes to drugs, about half the party doesn’t.”