At one of this week’s White House press briefings, Sean Spicer spent considerable time (clearly more than he wished) discussing the President’s approach to federal drug policy. This is one of the areas that I had previously flagged as representing a potentially meaningful departure from Obama Administration policy at the Justice Department. Spicer’s briefing appeared to signal that this Administration would take a more aggressive approach to drug crime than its predecessor. But that remains unclear.
Indeed, Spicer’s briefing may have created more new questions than it answered, which has become a rather predictable consequence of his briefings. Notably, Spicer discussed an obscure appropriations rider (which I previously discussed here) that defunds federal prosecutions for drug offenses in states with liberal medicinal marijuana laws. He distinguished — on no fewer than three occasions — recreational use from medicinal use, saying, with respect to federal drug enforcement relating to recreational use, “I do think you’ll see greater enforcement of it.” Presumably, in context, he means greater enforcement of the Controlled Substances Act where the use is recreational. Strangely, he subsequently tried to walk that statement back, instead referring the issue to the DOJ.
But the question now arises: will the Sessions DOJ more aggressively prosecute CSA offenses? Will the Sessions DOJ reverse the Holder Memo from August 2013 that directed federal prosecutors not to allege drug quantities that trigger mandatory minimums if certain criteria are met? That was a major pronouncement from Main Justice, and will have a meaningful effect on the way federal prosecutors treat drug crimes. Yet the Administration has thus far been silent, and Spicer’s briefing did not help to clarify that matter.
Moreover, the rider to which he alluded does not cover every jurisdiction, because not every jurisdiction has liberal medical marijuana laws. And it only applies where the defendant is in compliance with all of the State’s marijuana use laws. This means that, potentially, a defendant who is in violation of the CSA, but who is using the marijuana for medicinal purposes in a state that is not covered by the rider (say, for example, West Virginia), could still be subject to prosecution. Spicer did not seem to appreciate this scenario, and it raises the question: will the Administration prosecute those defendants? If so, does that not obliterate the distinction between medicinal use and recreational use that Spicer had drawn? Also, the rider is of limited duration; Congress could change it at any time. What will the Administration’s position be on continuing the policy adopted by the rider? Spicer did not say, but his distinction between recreational use and medicinal use would suggest that the Administration wants the rider to exist indefinitely. Does Jeff Sessions?
Finally, Spicer was asked repeatedly about the Administration’s decision to reverse the Obama Administration’s interpretation of Title IX with respect to transgender bathroom access. Spicer referred to this as a “states’ rights” issue (it is not, though that is a subject for another day), and said “we are a state’s rights party.” I have said before that the use of the term “states’ rights” is constitutionally unsound, in my view, and that conservatives should not use it (“federalism” is a far better term, and is more accurate). But if Spicer is correct that the Administration is committed to federalism, what, then, does that mean for federal drug law generally? Of course, the CSA was upheld against a Commerce Clause challenge in Gonzales v. Raich, but two notable conservatives – Chief Justice Rehnquist and Justice Thomas – dissented in that case, as did Justice O’Connor (a notable defender of federalism and of state interests). Why is drug law not a “states’ rights issue,” too? By making the transgender bathroom issue one of federalism, Spicer has opened the door to questions about whether the Trump Administration is committed to federalism across subject matter, or whether its approach to Title IX is a kind of fair-weather federalism.
Sure, the appropriations rider is a federalism-protection measure. But reference to the rider alone tells us nothing about the Administration’s view more broadly concerning the role of the federal government in making and enforcing criminal drug laws. Perhaps more notably, Spicer’s responses raised this question: if federalism demands respecting the states that have chosen to make medicinal use legal, why does federalism not demand respecting those states that have chosen to make recreational use legal? In other words, even if we grant the difference between recreational and medicinal use, does a true commitment to federalism require respect for state decisions as to both?
I’m no fan of more liberal drug laws. There must be a robust drug policy regime that takes a variety of approaches — including, but not limited to, prosecutorial ones — to the range of drug problems in this country. Spicer, of course, cannot be expected to answer at one briefing every question regarding the President’s views on these various problems. But this Administration needs a coherent approach to both drug policy and constitutional federalism. And right now it has neither.