On Marijuana Law, No Politician Is a True Federalist

(Bloomberg View) -- “Yet again, Republicans expose their utter hypocrisy in paying lip-service to states' rights while trampling over laws they personally dislike.” That was House Democratic leader Nancy Pelosi's reaction to the news that Attorney General Jeff Sessions is increasing federal enforcement of laws against marijuana in states that have legalized it.

Pelosi is right that consistency is hard to come by in debates over federalism. Liberals and conservatives alike hold their policy commitments more deeply than any federalist principles, and they invoke those principles as weapons of convenience in their fights over policy.

On marijuana specifically, almost nobody in politics is truly federalist. Sessions isn't, and neither is Pelosi or other critics of the attorney general.

Federalism on marijuana would entail letting states set their own policies on the issue, and confining the federal role to helping states when interstate commerce threatens their ability to enforce their laws.

Most of the officials who oppose the Sessions move are uninterested in legislation that would limit the federal role in enforcing marijuana policy. Pelosi isn't sponsoring a bill to eliminate federal laws against in-state marijuana commerce. She just wants the federal government to refrain, selectively, from enforcing those laws.

Senator Cory Gardner, a Colorado Republican incensed by the new policy, isn't pushing for legalization at the federal level either. He too just wants selective non-enforcement. He even says he will block nominees to the Justice Department until it agrees to his demand.

In 2005, the Supreme Court considered a challenge to the federal Controlled Substances Act. California users of medical marijuana insisted that the law should not apply to them because their state had legalized their behavior. The court ruled against them.

Justice Antonin Scalia, concurring in the decision, started from the premise that the federal government has the power to prohibit commerce in marijuana among the states. “Where necessary to make a regulation of interstate commerce effective,” he reasoned, “Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”

The court probably got the case right. How heavily the federal government has to be involved to stop interstate commerce in marijuana is a practical legislative judgment about which the courts have no special expertise or authority.

In deferring to Congress, the court left it open to legislators to revise that judgment. If Cory Gardner and Nancy Pelosi want the federal government to leave most of this field to the states, their proper course is not to make life difficult for the Justice Department until it agrees to stop enforcing the laws Congress has enacted. It's to change those laws.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.

To contact the author of this story: Ramesh Ponnuru at rponnuru@bloomberg.net.

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net.

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