Jeff Sessions vs the U.S. Constitution


Wednesday, January 10, 2018

This may come as a surprise to many that know my views on this subject, but I find Jeff Sessions’s recent announcement to enforce federal marijuana law egregious. In a reversal of Obama-era policy that discourages prosecution of marijuana crimes in states where it is legal, the Attorney General abandoned federalism, hence, arguably, abandoning conservatism. In pursuit of his decades-long crusade against the drug, he managed to tear apart state sovereignty.

Now, I agree with the Attorney General’s views on marijuana. I abhor the substance and can assure you that I will never take it. I nodded my head in approval when Sessions proclaimed “Good people don’t smoke marijuana.” Yet, unlike the Attorney General, I don’t let my ideological principles interfere with our constitutional values. Truly, the greatest principle a politician can have is upholding the Constitution.  

The shift in policy is a direct assault on states’ rights. “States’ rights” have always been a rallying cry for the party out of power, all too soon forgotten once that party regains control of Washington. It should not be this way, and the fragile relationship between States and Washington must be preserved and protected.   

Hence, we have the Tenth Amendment, which preserves federalism, and explicitly states that anything not written in the Constitution is not a power that can be exercised by the Federal government.

The people of California, Oregon, Washington, Nevada, Colorado, Alaska, Maine, and Massachusetts decided to legalize recreational marijuana in their respective states. I may disagree with their decision, but it is not my say. Despite the claims of weed activists, marijuana does indeed carry a number of health risks. However, I find Sessions’s decision far more dangerous to our country than marijuana.

Due to his decision, a precarious precedent has been set. An important question arises from the recent announcement: Does the Federal government have the right to strike down any state law it chooses? If it could, there would be little purpose for state legislatures. The ability to pass laws nullifying state laws effectively makes the federal government sovereign.

That is the exact opposite of what our Founders wanted. The people of this nation are sovereign, not the government, and the separation of powers carefully laid out in the Constitution protects our liberties. Founding Father and Associate Justice of the Supreme Court James Wilson said it best: “To the Constitution of the United States the term SOVEREIGN, is totally unknown.”

All members of our government have a duty to uphold our Constitution, and preserve the federalism our Founders created. Yet, Congress and the entire Federal government have neglected the Constitution in regards to drug policy. Sessions is upholding the Controlled Substances Act, passed by Congress in 1970. The act regulates the use, manufacturing, important, and possession of certain substances. As DailyWire’s Elliott Hamilton wrote:

That being said, I believe that Attorney General Sessions missed an opportunity to distinguish the facially unconstitutional nature of DACA/DAPA from the arguably problematic (and possibly unconstitutional) nature of the Controlled Substances Act. See 21 U.S.C. § 801 et. seq.. While the Obama-era Department of Justice categorically abused the policy of prosecutorial discretion to shield the states from possible federal interference, the Trump-era Department of Justice could have viewed the Controlled Substances Act as an overreach of federal authority on commerce and utilized the theory of departmentalism to argue that the federal government should have no say on how the states should govern the legality of marijuana.

You may be wondering where the Constitution stands on this issue. It is actually quite clear. The Commerce Clause (Article I, Section 8, Clause 3) states:
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

As you can see, the Federal government is granted the authority to regulate interstate commerce, not commerce within a state’s sovereign borders. While the Supremacy Clause of the Constitution establishes that Federal law is the law of the land, it also states that such laws must adhere to the Constitution itself. When testing the constitutionality of the Controlled Substances Act, it becomes clear that the act violates the Commerce Clause, at least in theory.  Unfortunately, though the act has in practice violated the Constitution by regulating commerce within states, the Supreme Court has upheld it.

Over the years, the Court has offered varying opinions in regards to the Commerce Clause.  The 1995 case United States v. Lopez involved a twelfth grade Texan who brought a gun to school, violating the Gun-Free School Zones Act of 1990. Since the act involved commerce unrelated to interstate trade, the Court ruled in favor of Lopez. Chief Justice Rehnquist wrote:

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power… First, Congress may regulate the use of the channels of interstate commerce… Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities… Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce… i. e., those activities that substantially affect interstate commerce.

Within this final category, admittedly, our case law has not been clear whether an activity must “affect” or “substantially affect” interstate commerce in order to be within Congress’ power to regulate it under the Commerce Clause… We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce.

However, in the 2005 case Gonzales v. Raich, when ruling on the constitutionality of the Controlled Substances Act, the Court ruled in favor of the Federal government. Elliott Hamilton summarized the case as follows:

In 2004, the Supreme Court granted a writ of certiorari to Raich v. Ashcroft (subsequently named Gonzales v. Raich), a Ninth Circuit case to determine whether the Congress had the power to prohibit local cultivation and use of marijuana through the Necessary and Proper and Commerce Clauses. Raich was a California resident who suffered from various medical ailments and grew marijuana on her own private property solely for her medicinal purposes. The Drug Enforcement Agency (DEA) and the local county sheriff raided her house and sought to charge Raich with violating the Controlled Substances Act. The fact pattern of this case was similar to that of Wickard where Congress passed an Act that would regulate an individual’s ability to produce goods for their own personal benefit.

In a 6-3 decision, the Supreme Court held that Congress did have the power to regulate individuals attempting to cultivate marijuana for personal use. Writing for the majority, Justice John Paul Stevens partially defended this holding by citing Wickard​, arguing that Congress can regulate “purely intrastate activity that is not itself ‘commercial,'” and that Congress’s intention in legislating the Controlled Substances Act was driven with the intention of regulating any market for legal or illegal drugs.

Despite the ruling, the Constitution is still the law of the land, and it clearly prohibits the federal government from regulating local commerce. Assistant Professor William Baude at the University of Chicago Law School wrote:

First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. Congress’s enumerated powers are to regulate interstate commerce, and to pass laws necessary and proper to carrying that interstate regulation into effect.

He continues:

Members of the executive branch have their own obligation to interpret the Constitution, and if a federal law is unconstitutional in part then the executive branch, no less than the courts, should say so. It is the Constitution, not the Court, that is the ultimate rule of law in our system.

Attorney General Sessions, while following the law, is upholding a potentially unconstitutional statute. Every member of our government has a duty to support and defend the Constitution, the law of the land.  

Sessions is not only protecting a tyrannical statute, but also managing to rip apart federalism while doing so. Montesquieu was correct when he said “power checks power.” The only way our Republic can prosper is if the delicate balance between the states and Washington is maintained. The consolidation of power into the hands of the federal government, be it by Sessions or the Obama administration, is endangering our Republic.

I hope you can now see why Sessions’s marijuana crackdown endangers our form of republican government. We cannot just follow the Constitution when it fits our political agenda. If the Attorney General truly tries to enforce federal marijuana policy, President Trump has a Constitutional duty to remove him from office.  

The nation is watching. Do the right thing, Mr. Attorney General, and, if you don’t, the President must.


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Jake Fradkin is an incoming freshman at Georgetown University. Jake's interests include mathematics, politics, history, tennis, and writing (and his dog Hulio). His writing tends to focus on the Constitution and foreign affairs.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Jake Fradkin

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Jake Fradkin is an incoming freshman at Georgetown University. Jake's interests include mathematics, politics, history, tennis, and writing (and his dog Hulio). His writing tends to focus on the Constitution and foreign affairs.

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