The campaigns for and against Prop. 64, the Adult Use of Marijuana Act, revolved around the minutiae of the proposition: Will the big guns get rich at the expense of mom-and-pop growers? Do we have to give away our medical marijuana cards and pay more for our pot? What do we do with impaired drivers?
It seems like pretty soon we’ll have more serious problems on our hands as a result of legalization. Trump’s planned nominee for Attorney General, Alabama senator Jeff Sessions, does not share the opinions espoused by reasonable, cost-minded Republicans about the harms of overcriminalization or the sensibility of a public health model for substance abuse. Instead, we will have to contend with a man whose acquaintances define as a “war on drugs dinosaur”, and who claims that good people don’t smoke marijuana.
(how do good people get their marijuana, then? Do they munch on edibles? Vape? Or maybe they smoke something else? What is it?)
The regime of state regulated-marijuana, as established by the Supreme Court in Gonzalez v. Raich (2005), means that Congress, despite its federal prohibition of marijuana, has not preempted the states from regulating it within their borders. On the other hand, it is perfectly permissible for the use of marijuana to be legal statewise and illegal vis-a-vis the federal government: after all, citizens can freely choose to obey both laws by not using cannabis. Granted, this reason was more upsetting with regard to the original plaintiffs in Raich, who suffered from debilitating medical conditions, than with regard to the prospective users of recreational marijuana in 2016. Still, it is a reminder that, while the State of California has decided to opt out of a criminal justice model, the feds can freely ignore Eric Holder and James Cole’s memos about federal restraint in enforcement.
In other ways, gentle reader, there is nothing to stop Jeff Sessions from taking away your pot.
The progressive and libertarian outcry against prospect of federal intervention in recently-legalizing states is understandable. The Trump victory makes the marijuana victory hollow. Federal law enforcement can make, and has in the past made, the lives of marijuana growers, sellers, and users impossible, even in states with lack or no enforcement of their own. And some of the outcomes of this contradiction are downright bizarre. For example, gun salespeople are not allowed to sell guns to anyone who is a “unlawful user and/or an addict of any controlled substance”–including medical marijuana, as the Department of Justice clarified in 2011. Technically speaking, this state of affairs is legally permissible, because Americans can comply with both legal systems by not using marijuana, in which case nothing can stop them from buying guns. But to some commentators this is inappropriate federal intervention in state affairs.
This little example is nothing compared to what we might see during the tenure of a man who finds moral fault in cannabis users: a renewal of the federal war on drugs, with its futility, noxious tactics and tragic outcomes–but this time, with the disturbing history of the Nixon and Reagan eras to school police departments and states in carceral expansion. In this grotesque carnival mirror caused by the election, blue states will now be the ones crying out for state rights.