With the legalization of both medical and recreational marijuana spreading across the country, some feel as though the marijuana's momentum cannot be stopped. Some have even argued that they welcome a crackdown by Attorney General Jeff Sessions to bring the issue to the courts.
However, with the news of imminent changes to federal policy, and the expected crackdown on marijuana that will follow, those who called for their day in court will soon regret such challenges since long-standing federal law and Supreme Court precedent both support federal prohibition.
Some have argued that the threatened federal crackdown by Attorney General Sessions is a perfect opportunity for marijuana legalization to score an easy win in the court of law. But such challenges are short-sighted, and ignore decades of Supreme Court precedent.
During the landmark case of Wickard v. Filburn in 1942, the Supreme Court interpreted the commerce clause of the U.S. Constitution to allow for the Federal government to regulate economic activity that takes place completely within a state's borders. Adopting the “Aggregate Impact Test,” the Supreme Court held that the federal government can regulate all economic activity if it can be shown that the economic activity, multiplied by the number of similarly situated individuals conducting that economic activity, would affect interstate prices.
Then in 2005, the Supreme Court specifically upheld the constitutionality of Federal marijuana prohibition using the aggregate impact test in the landmark case of Gonzales v. Raich. In a 6 – 3 decision, the Supreme Court specifically rejected 10th Amendment arguments, 5th Amendment due-process arguments, and commerce-clause arguments against federal marijuana prohibition.
Simply put, federal marijuana prohibition is constitutional, and will continue to be enforced following long-standing Supreme Court precedent.
Elections Have Consequences
As the magnitude of Sessions' reversal of the Cole memo begins to manifest across the industry, it is important to remember that this outcome was entirely foreseeable. From the moment President Trump tapped then Senator Jeff Sessions as A.G. everyone knew exactly how he would approach the issue of marijuana.
Every single person who has followed the marijuana movement should have known from that moment that the Trump administration would not be favorable of the issue of marijuana, and yet I know of hundreds of activists who ignored the obvious and cheered for Mr. Trump's choice.
Elections have consequences. Unfortunately, many have allowed their political ideology to blind them to the obvious. While only time will tell what damage this change of policy will have for the budding marijuana industry, such disruption was entirely foreseeable.
For those who have hailed this change of policy as a way to get reform through the federal judiciary, I say be careful what you wish for, because you just might get it, and the marijuana movement will lose.
Hunter J. White is the Communications Director of the national Republican political organization, Republicans Against Marijuana Prohibition, or RAMP, a Non-Profit 501-c3 organization dedicated to the complete repeal of marijuana prohibition in all its forms. In this series of articles, Hunter shares the challenges, experiences, and insights that he has gained from years of working to bring marijuana policy reform to the Republican Party.