Article I, Section 1 of the United States Constitution provides that: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Legislative powers are the power to make and repeal laws. Those powers are not vested in the executive branch, which includes the president and, more relevant to this discussion, Attorney General Jeff Sessions, who recently announced that he will no longer follow an Obama-era policy of not enforcing federal laws against marijuana. Some states have repealed their own laws against marijuana, but marijuana remains illegal under federal law, and will stay that way unless Congress legislates otherwise.
This is basic civics stuff, but it seems to have eluded a lot of people. People such as Sen. Cory Gardner, R-Colo., who exploded in response to Sessions’ announcement, saying that marijuana laws should be left to the states, and who vowed to “take all steps necessary” to secure a reversal of Sessions’ announcement, including holding up nominees to the Department of Justice.
Many other members of Congress — from Sen. Bernie Sanders, I-Vt., to Rep. Ted Lieu, D-Calif., were also critical. But if you want to leave marijuana decisions up to the states, there’s an easy way to do that: Repeal the federal marijuana law. Legislate, which is supposed to be the job of … legislators. Like Gardner, Sanders or Lieu.
There’s even a bill in front of Congress to do just that, HR 975, the Respect State Marijuana Laws Act, introduced by Rep. Dana Rohrabacher, R-Calif., in 2017. It has bipartisan sponsorship, divided roughly evenly between Republicans and Democrats.
So why are Gardner, et al. attacking Sessions instead of speaking out in favor of new legislation?
Well, for one thing, it’s easy. Passing bills is work, denouncing Sessions requires only a press release — or in this case, a few tweets.
It’s also safer. Congress has been surprisingly willing to let the executive branch take over its lawmaking functions through regulatory measures, executive orders and “prosecutorial discretion.” That’s because then the executive branch takes the blame, while members of Congress don’t have to take a stand.
And it’s for that reason that, even though I favor marijuana legalization, I approve of what Sessions has done. He’s basically told Congress that if they don’t like the marijuana laws that are on the books, they need to get off their butts and change them. As an executive official, he’s telling the legislative branch that he’s going to respect the constitutional separation of powers, which means that if the law is changed it will have to be changed by the lawmakers.
As reported in Politico, Sessions’ action may make the legalization of marijuana more likely, as a lot of legislators who have been trying to have it both ways are forced to take a position. Sen. Patrick Leahy, D-Vt., for example, who refused to discuss his position on marijuana legalization with Politico “just a few weeks ago,” is now pledging to fight for legalization.
And he’s not alone. Marijuana means jobs and tax revenues in many states, and if the Justice Department won’t promise to ignore the federal law, there will be a lot of pressure on Congress to change the law.
And that’s exactly how the system is supposed to work. Members of Congress would rather have it both ways, of course, because they’re politicians and talking out of both sides of their mouths is standard procedure. But we get better government when people have to take a stand, and face the voters. Looks like that’s going to happen here, for which we can thank Attorney General Sessions.