Ted Cruz Faults Obama for Not Imposing Marijuana Prohibition on States That Have Rejected It

Last Friday, as part of a
broader attack on President Obama’s “imperial”
tendencies, Sen. Ted Cruz (R-Texas)
criticized the Justice Department for
indicating that it will not prosecute marijuana growers
and sellers who comply with state law, provided they are properly
regulated. Speaking at a Texas Public Policy Foundation conference
in Austin, Cruz said this prosecutorial forbearance illustrates
Obama’s habit of ignoring the law when obeying it would prevent him
from doing what he wants:

A whole lot of folks now are talking about legalizing pot….And
you can make arguments on that issue. You can make reasonable
arguments on that issue. The president earlier this past year
announced the Department of Justice is going to stop prosecuting
certain drug crimes. Didn’t change the law.

You can go to Congress. You can get a conversation. You could
get Democrats and Republicans who would say, “We ought to change
our drug policy in some way,” and you could have a real
conversation. You could have hearings. You could look at the
problem. You could discuss commonsense changes that maybe should
happen or shouldn’t happen. This president didn’t do that. He just
said, “The laws say one thing”—and mind you, these are criminal
laws; these are laws that say if you do X, Y, and Z, you will go to
prison. The president announced, “No, you won’t.”

Contrary to the Raw Story headline,
Cruz said nothing about “locking up marijuana users in Colorado.”
The federal government generally avoids penny-ante pot cases, and
it has never made it a priority to bust cannabis consumers. Almost
all such arrests are made by local police. But that very fact
suggests something is wrong with Cruz’s argument. Since possessing
any amount of marijuana is prohibited by the Controlled Substances
Act, did Obama’s predecessors forsake their duty to uphold the law
by focusing on big pot cases? Or were they exercising appropriate
discretion in deciding how best to allocate federal law enforcement
resources?

That is precisely what the Justice Department claims to be doing
in connection with states that have legalized marijuana for medical
or general use. In his
August 29 memo outlining the policy, Deputy Attorney General
David Cole said it is all about “using [the department’s] limited
investigative and prosecutorial resources to address the most
significant threats in the most effective, consistent, and rational
way.” With that goal in mind, Cole said, U.S. attorneys should
focus on cases that implicate “certain enforcement priorities,”
including preventing marijuana consumption by minors, diversion to
to the interstate market, and drugged driving or “the exacerbation
of other adverse public health consequences associated with
marijuana use.” Contrary to Cruz’s implication, the memo offers no
guarantees. Federal prosecutors can decide to crack down at any
time for one of the reasons Cole mentions or for other reasons they
make up on the fly. The memo closes with a warning that “nothing
herein precludes investigation or prosecution, even in the absence
of any one of the factors listed above, in particular circumstances
where investigation and prosecution otherwise serves an important
federal interest.”

Cruz therefore is wrong to suggest that the administration has
declared the Controlled Substances Act inoperative in states that
have legalized marijuana. Nor does the policy described in the Cole
memo violate that statute, which has never been enforced against
every violator. In that respect Obama’s grudging tolerance of
marijuana legalization differs from, say, his decision to ignore
certain provisions of the health care law he championed when they
became inconvenient—another, more apposite example of lawless
presidential action cited by Cruz.

Speaking of Obamacare, it is rather strange to see one of its
leading opponents argue that the president should seek to scuttle
marijuana legalization in Colorado and Washington. The main
constitutional problem with the Patient Protection and Affordable
Care Act is that it
exceeds the federal government’s powers under the Commerce
Clause—an issue the Supreme Court dodged
by implausibly treating the penalty for failing to obtain
government-approved medical coverage as a tax. The same is true of
the federal ban on marijuana, at least insofar as it purports to
criminalize intrastate activity. In fact, the 2005 Supreme Court

decision upholding enforcement of federal marijuana prohibition
against patients in states that allow medical use is widely seen as
the most extreme example of stretching the Commerce Clause beyond
recognition to accommodate every congressional whim. “If Congress
can regulate this under the Commerce Clause,” Justice Clarence
Thomas observed in that case, “then it can regulate virtually
anything—and the Federal Government is no longer one of limited and
enumerated powers.” Yet here is Cruz, an avowed constitutionalist
and
federalist, demanding that Obama impose marijuana prohibition
on states that have opted out of it, based on an absurdly broad
reading of the power to regulate interstate commerce.