As a United States attorney in Alabama serving under President Ronald Reagan in 1986, 39-year-old Jefferson Beauregard Sessions III was charged with enforcing civil rights laws. But he said then that he didn’t have much of a problem with what the Ku Klux Klan stood for, musing that he thought the KKK was “OK until I found out they smoked pot.”
Sessions takes office as U.S. attorney general in a matter of days, at the same time President-elect Donald Trump is sworn into the office he won with far less than a plurality of popular votes last fall.
Because he has not changed his opinion of pot over 30 years, Trump’s new attorney general, recently a solidly anti-civil rights Republican senator, could be headed for major confrontations with new California Attorney General Xavier Becerra and the chief legal officers of seven other states that have legalized recreational use of marijuana.
How much antipathy for the weed does Sessions harbor? Now 70, he observed in April that “Good people don’t smoke marijuana” and that it is “a very real danger” that is “not the kind of thing that ought to be legalized.” He has called pro-pot laws like last fall’s California Proposition 64 a “tragic mistake” and blasted outgoing President Obama’s attorneys general, Eric Holder and Loretta Lynch, for announcing they would not prosecute most marijuana offenses, and then making that their policy.
It’s a policy that can and very likely will be overturned quite soon.
This makes it entirely possible that federal agents will go after pot growers and dealers, even the fully permitted retail outlets that sport big neon green cross signs in many parts of California.
That’s because California is the fattest, most prominent target among the eight states with fully legalized marijuana, which include Colorado, Alaska and Washington, among others. California also provided Democrat Hillary Clinton her entire 2.8 million popular vote margin in the fall vote, and more.
Sessions’ authority on pot is based on the constitutional principle that federal laws always preempt those of individual states. So long as pot — both for medical and recreational use — remains verboten under federal rules, arrests can happen here anytime the Trump administration likes.
One thing that might make legalized pot easier for Sessions to go after is the fact that of the eight fully-legal-cannabis states, only one — Alaska — voted for Trump. So Trump loses no critical support if he goes after California’s law and the new crop of businesses taking advantage of it.
Sessions could act by suing in federal court to have Proposition 64 invalidated. There is certainly plenty of precedent for this tactic. Most recently, after the anti-illegal immigrant Proposition 187 passed by an even wider margin in 1994 than Proposition 64 did, federal judges dispatched almost all its provisions as unconstitutional, including sections banning the children of undocumented immigrants from public schools, denying emergency medical care to them and more.
What worked for liberal lawyers in the late 1990s would most likely work as well for conservative ones now, while marijuana remains a federal Schedule 1 drug, right alongside heroin, ecstasy and LSD. By contrast, the likes of morphine and methamphetamines are mere Schedule 2 villains, judged by federal authorities to be one step less pernicious than pot.
A concerted federal campaign against cannabis would certainly get little or no aid from most state or local police in California. It would make terrible investments of the many millions of dollars spent over the last year or so on land and infrastructure to grow and distribute legal pot. And if he’s resolute in defending Proposition 64 and any Californians targeted by Sessions and his corps of U.S. attorneys for acting on it, Becerra could become a hero to the 60 percent of Californians who backed Prop. 64.
All this is safe to contemplate because there’s absolutely no evidence Trump would order Sessions to desist from prosecuting the pot establishment here and in other legalized states.