SLOAN: Could it be that Sessions is simply doing his job?

Author: Kelly Sloan - January 10, 2018 - Updated: January 10, 2018

Kelly Sloan

Everyone, please, calm down. Deep breath. That’s it. Better? OK, so U.S. Attorney General Jeff Sessions certainly caused something of a political commotion in Colorado with his decision to rescind some Obama-era directives which basically told U.S. attorneys to ignore, or at least de-prioritize, certain federal laws concerning marijuana, easing the way for nascent marijuana industries to do their thing in states which legalized the drug.  He did this by issuing his own memo which told U.S. attorneys they are again afforded the flexibility to enforce federal law in the matter. Yes, yes, I know, it’s on the order of repealing the Bill of Rights, burning the Magna Carta, and reinstating the Ancien Regime all in one fell swoop. I get it.

But maybe – now hear me out – if we dissect this a little there just might be a kernel of a civics lesson here. Stick with me.

So obviously there was some question as to how this would play out in Colorado, one of the first states to legalize recreational marijuana usage. There were outraged cries from the predictable sources, of course, but also from less-likely corners; both U.S. Sen. Cory Gardner and GOP state Attorney General candidate George Brauchler, for instance, came out against the move as being an intrusion on domain that rightly belongs to the state.

A valid objection, but let’s unpack this a bit; first, it needs to be noted that Jeff Sessions’s job is to enforce the laws of the United States, i.e. federal law. Whether or not you happen to believe marijuana should be legal, or whether or not its legality ought to be a matter for individual states to decide, the fact remains that recreational marijuana consumption is a federal crime.

It would be exceedingly naïve to suggest Mr. Sessions’ passionate opposition to drug legalization has nothing to do with how he prioritizes his office. But let us merely stipulate that it is entirely within the U.S. attorney general’s enumerated realm of responsibilities to enforce federal laws, his duty even. OK?

Now, Sen. Gardner was also correct, in my estimation, to bring up the topic of state’s rights, and to argue against undue federal interference in state matters. As usual, he displays an admirable respect for federalism and the 10th Amendment. But as others have pointed out, some of his wrath may be misdirected towards Mr. Sessions. Gardner and his colleagues are, after all, uniquely positioned to affect the laws that Sessions enforces, by way of being, well, federal lawmakers. Whatever you think of the wisdom of the move, Sessions ought at least to receive credit for recognizing the limits of his office, that the executive branch exists to execute laws, not create them. Federal law – whether it concerns drug policy, or immigration, “dreamers,” net neutrality, or what have you – ought to be made by Congress, not the executive branch.

So now we come to the state level. Thoughts quickly turn to how this episode may affect the state AG’s race. Mr. Brauchler addressed the issue quickly, delineating it, like Gardner, not as a pro- or anti-marijuana issue, but as a state issue, one for Colorado to decide. “We are best-suited to govern ourselves, not folks who live and work 1500+ miles from here” he Tweeted.

It is a laudable position for Brauchler to adopt, considering how, like most law enforcement professionals, he is not exactly crazy about drug legalization. But he recognizes the role of the job he is seeking as being limited to enforcing the laws of the state, as wise or foolish as they may be – among which is one making marijuana legal. Mirroring, as it were, Sessions’ role, at the state level.

On this particular issue, it is pretty safe to assume all the AG candidates end up in the same place, though for crucially different reasons. How, one wonders, would Mr. Brauchler’s opponents act in a similar situation – faced with defending, as a matter of principle, a state law they didn’t like? Would any of them, for instance, be as forceful in advocating for the state’s legal position concerning control of oil and gas operations?

It is a question worth asking, possibly the single most important question to pose an AG candidate.

So perhaps apocalyptic despair over the Sessions’ Memo is not in order after all. In fact, maybe it ought to be celebrated if only for the new-found appreciation of federalism and the 10th Amendment it seems to have engendered from all quarters. Dare we now hope that such enthusiasm will hold when the discussion turns from marijuana to Medicaid, education, energy, etc.?

Kelly Sloan

Kelly Sloan

Kelly Sloan is a political and public affairs consultant and recovering journalist based in Denver. He is also an energy and environmental policy fellow at Centennial Institute.