Having abandoned much of the Reagan way — the sunny disposition, free trade, the unshakeable commitment to America’s global leadership — the Trump administration has now embraced the worst of the Reagan legacy: deficits, for one thing, and the so-called war on drugs, which Attorney General Jeff Sessions means to fight with atavistic rigor.
In the 22 years since the editors of this magazine declared “The War on Drugs Is Lost,” the United States has lurched, spasmodically, toward a new settlement on drugs, especially on marijuana. Republicans, ranging from libertarian-leaning figures such as Senator Rand Paul to more traditional conservatives such as former Texas governor Rick Perry, have come around to the wisdom of full or partial decriminalization, drug courts, emphasizing treatment and rehabilitation over incarceration, and other humane reforms. It took our so-called liberals a little longer: Recall that when William F. Buckley Jr. took the libertarian position on drugs in that famous debate, his opponent was the Reverend Jesse Jackson. Many Democrats have since concluded that the war on drugs has done at least as much damage to the cities and their populations as the drugs themselves. More joy in Heaven and all that.
One of those Democrats was Barack Obama, who put those views into play in the fashion characteristic of the Obama administration: through executive overreach that undermined the rule of law. The Obama administration, under the guidance of Attorney General Eric Holder, adopted a series of memos in an attempt to harmonize federal practice with state practice: Marijuana is illegal under federal law but is available for both medicinal and recreational use in many states, California having just joined their ranks. One of those was the Cole memo, which directed the DOJ to forgo prosecuting marijuana providers in states where their businesses are legal, focusing its resources instead on organized crime and international trafficking — problems that are of a more obviously federal nature than practices contained entirely within the borders of Colorado.
Sessions has a point, or a piece of a point, when he argues that the Obama-era memos did not merely clarify DOJ practices but in effect changed federal law over the heads of Congress. It would be better if Congress changed federal law to better accommodate states in which marijuana is legal; it would be even better if Congress did not have to do so, the federal jurisdiction being confined to its proper role in these matters, which is interstate and international. John Paul Stevens will forgive me for suggesting that the Supreme Court erred in its decision in Gonzales v. Raich, which enshrined the federal power to regulate marijuana consumption within the borders of a single state under its interstate commerce powers, a nonsensical conclusion but one not entirely inconsistent with precedent regarding the interstate-commerce clause, the elasticity of which apparently is infinite. But Sessions is not merely concerned with Obama-era overreach. He is a declared drug warrior in search of opportunities to open new fronts, an intelligent man who nonetheless maintains that marijuana use is only slightly less destructive than heroin addiction, a patently ridiculous contention. Sessions is here acting in accord with the wishes of the White House and the president, whose tough-on-crime posturing has put his administration at odds with the best conservative thinking on drugs and criminal-justice reform. In Trump’s mind, it’s always 1983. What comes after 1983 is 1984 and its invasive surveillance state, which is one of the many unhappy innovations associated with the war on drugs.
Senator Cory Gardner, Republican of Colorado, where the marijuana business is thriving (but not without externalities), has announced that he intends to oppose the Trump administration beak and talon on this issue, up to and including the obstruction of Department of Justice appointees. Someone should remind Mr. Gardner that not only is he a senator but he is a senator whose party is, for the moment, in the majority.
If Gardner and other Republicans wish to see federal marijuana law reformed — and they should wish it — then they might consider the radical step of introducing and passing legislation to that effect. They’ll have Democratic support if they do so, and Republicans looking for an opportunity to differentiate themselves from the Trump administration could do worse than to dare him to veto such a needful reform, one that is likely to prove popular as well. The lawmakers ought to do their jobs and make some law.
Drugs are a scourge. The war on drugs is a worse scourge. The former can be mitigated through careful policy reform, and the latter could — and should — be discontinued almost entirely, tomorrow if we so desired. Perhaps Senator Gardner will distinguish himself by taking up the cause rather than demanding that the attorney general do his work for him. Jeff Sessions is devoted first and foremost to the law. Change the law, and he’ll change with it, even if he doesn’t much enjoy it.
