Federalism Cuts Both Ways

A new Department of Justice memorandum — directing federal prosecutors to abstain from prosecuting violations of federal laws, where prospective defendants are in open compliance with state laws permitting possession of marijuana — threatens to show the widening gap between conservative ideals, and the conservative social agenda.

After all, the Obama administration’s new policy of abstention, as part of Justice’s responsibility to set priorities in law enforcement, is a model of federalism: while the federal government can retain an interest in the spillover effects of the drug trade, where there’s no evidence of spillover effects and thus no real federal issue, basic principles of “states’ rights” dictate that the federal government should leave well enough alone.  It’s what Republicans like Pawlenty have been demanding in the health care debate, all along.

Apparently, though, the same principle doesn’t apply to the drug trade, according to at least some Congressmen (Lamar Smith, R-TX):

The Administration’s new guidelines directing federal prosecutors to ignore local medical marijuana dispensaries that allegedly operate in compliance with state laws fly in the face of Supreme Court precedent and undermine federal laws that prohibit the distribution and use of marijuana.

Setting aside Rep. Lamar’s obvious confusion between permissive and mandatory federal action — the government can, pursuant to Raich, regulate medical marijuana, but it need not — Republicans and serious conservatives should ask themselves why that is. If Republicans are to abandon even the appearance of advocating for limited government, they risk becoming a party defined entirely by social issues. And that’s not a winning agenda.



  1. It’s selective enforcement with limited resources. Is any (resonable) person upset that it isn’t policy to write speeding tickets for anyone going even 1 mph over the speed limit? It wouldn’t be efficient, and it would make it that much more difficult to catch those who are grossly exceeding the speed limit.

    In a way, you’d think this would be a good thing for Republicans – conservative states don’t have medical marijuana laws, so this edict shows that the priority is to be those states and the national-level operations more likely to affect them. How much does the war on drugs in Oklahoma benefit from the arrest of a medical marijuana user in California?

  2. I’m reminded of when Alberto Gonzalez made one of the Justice Department’s top priorities busting people for online porn.

    And to add to what Kris said, it sounds like Obama’s administration has said they won’t make a priority of medical marijuana prosecutions, not that they won’t ever do them. And I realize that leaves the possibility of putting them in the POP category of law (“Pissed Off Police”), or the selective-prosecution-of-political-enemies… but again, prosecuting political enemies for medical marijuana doesn’t seem likely to lead to many politically-motivated prosecutions of conservatives.

    Libertarians, maybe, but their bizarre coalition notwithstanding, the two are different.

%d bloggers like this: