Bernie Sanders on Marijuana Legalization
by Michael C. Dorf
Throughout the caucus and primary season, Democrats have been deciding on a candidate by considering who is more likely to win the general election (and how much more likely) and choosing who would be the best President. That choice is simpler now that the race has been effectively narrowed to two contenders, but it is by no means simple.
Consider my own calculus. My policy views are heterogeneous but on average closer to those of Bernie Sanders than Joe Biden. Meanwhile, just last month I tentatively suggested that the usual framing of base mobilization (via Sanders) versus appeals to moderate swing voters (via Biden) could be wrong--that Sanders might be better positioned both to motivate base activists and to appeal to potential swing voters because, as a left-leaning populist he could better compete with Trump's right-wing populism. However, that tentative suggestion could be wrong in various ways. Sanders draws huge crowds for rallies but has not yet generated the sort of turnout bump at the polls that he would need to generate for the turnout theory to be reliable in the general; meanwhile, Biden's appeal to African American voters could be crucial in the general; pointing the other way, there is also the question of how many Sanders primary voters would stay home or vote third-party should Biden win the nomination. With so much uncertainty, I am therefore going to continue to withhold the coveted Dorf endorsement. (That's meant to be self-deprecatingly ironic, in case there was any doubt.)
My refusal to give voting advice does not mean that I'm going to have nothing to say about the Presidential election, however. From time to time, I'll take a deepish dive into something I might actually know something about. Today's topic: The proposal by Sanders to legalize marijuana nationally by executive order. Although I mostly share the underlying policy goals, some important elements of the proposal are legally dubious.
The Sanders proposal has a number of elements. The most plausible would declassify marijuana as a Schedule I substance. That can be achieved by executive action, but there are a number of administrative steps necessary for doing so, as usefully explained here. Sanders could certainly initiate the process of declassification on Day 1 and substantial progress towards that goal could be made in the first 100 days of the Sanders administration. A Sanders administration could also make official--as the Obama administration did--the policy of non-enforcement of the federal marijuana laws. It could extend that policy to include even states that have not legalized marijuana.
Indeed, to my mind, blanket non-enforcement of federal marijuana laws would arguably be more justifiable than the Obama (and unofficial Trump) policy of non-enforcement only in states that have legalized. I am dubious about claims of a broad presidential power not to enforce laws a particular administration does not happen to like. The executive branch does, however, necessarily exercise prosecutorial discretion, and resource constraints are a well-established basis for establishing enforcement priorities. That was always the best justification for prioritizing immigration enforcement against people who posed a threat to public safety or national security. It was never a very good justification for prioritizing marijuana enforcement in states in which it is illegal. However, a Sanders administration judgment that marijuana enforcement should be nationally deprioritized relative to other law enforcement objectives would be defensible on resource allocation grounds.
The Sanders proposal also promises to "review all marijuana convictions - both federal and state - for expungement and re-sentencing. All past convictions will be expunged." I assume this means that people currently imprisoned will have their sentences reviewed and considered for both expungement and re-sentencing, while people who have completed their sentences will simply receive expungements. One can raise many questions about the idea. Does it apply only to people who were convicted of personal-use possession? If not, where's the line? Etc. For now, I'll just make the point that a President has no power to expunge or order re-sentencing with respect to state convictions. The pardon power is broad and probably provides a simpler mechanism for people convicted of federal crimes, but it too is limited to federal offenses. I don't know how "state" entered into the plan. I haven't seen any serious effort to defend it.
To its credit, the Sanders plan does call for action by Congress. A federal statute could completely legalize marijuana at the federal level and could pre-empt all state laws restricting marijuana. But to the extent that the Sanders proposal implies--and it not just implies but says--that a President acting on his own can eliminate state law penalties, that's wrong.
The Sanders plan also suggests that the federal government will use the promise of federal funding in order to induce states to cooperate with decriminalization. That's a possibility--but only if authorized by Congress. Litigation by state and local governments rightly challenged the Trump administration policy of withholding federal funds from so-called sanctuary jurisdictions on the ground that the Supreme Court Spending Power cases require a clear statement by Congress in order for the federal government to condition the expenditure of federal funds on state participation in some federal program. Just as Congress could pre-empt state marijuana laws by federal statute, so Congress could use federal funds to incentivize states to participate in various federal programs. But the President acting alone cannot withhold federal funds.
The Sanders webpage is a little vague on the conditional spending point. It's possible that his people understand that the carrot of federal funds can only be doled out by Congress (or the executive via a delegation from Congress). But a plain reading of the Sanders language at least strongly suggests that a President Sanders acting alone could wield the Spending Power. He cannot.
Bottom Line: Through administrative action, the executive branch could effectively eliminate the federal role in marijuana criminalization. But the Sanders proposal over-promises. Most charitably, it should be read as a blueprint for Congressional action.
Throughout the caucus and primary season, Democrats have been deciding on a candidate by considering who is more likely to win the general election (and how much more likely) and choosing who would be the best President. That choice is simpler now that the race has been effectively narrowed to two contenders, but it is by no means simple.
Consider my own calculus. My policy views are heterogeneous but on average closer to those of Bernie Sanders than Joe Biden. Meanwhile, just last month I tentatively suggested that the usual framing of base mobilization (via Sanders) versus appeals to moderate swing voters (via Biden) could be wrong--that Sanders might be better positioned both to motivate base activists and to appeal to potential swing voters because, as a left-leaning populist he could better compete with Trump's right-wing populism. However, that tentative suggestion could be wrong in various ways. Sanders draws huge crowds for rallies but has not yet generated the sort of turnout bump at the polls that he would need to generate for the turnout theory to be reliable in the general; meanwhile, Biden's appeal to African American voters could be crucial in the general; pointing the other way, there is also the question of how many Sanders primary voters would stay home or vote third-party should Biden win the nomination. With so much uncertainty, I am therefore going to continue to withhold the coveted Dorf endorsement. (That's meant to be self-deprecatingly ironic, in case there was any doubt.)
My refusal to give voting advice does not mean that I'm going to have nothing to say about the Presidential election, however. From time to time, I'll take a deepish dive into something I might actually know something about. Today's topic: The proposal by Sanders to legalize marijuana nationally by executive order. Although I mostly share the underlying policy goals, some important elements of the proposal are legally dubious.
The Sanders proposal has a number of elements. The most plausible would declassify marijuana as a Schedule I substance. That can be achieved by executive action, but there are a number of administrative steps necessary for doing so, as usefully explained here. Sanders could certainly initiate the process of declassification on Day 1 and substantial progress towards that goal could be made in the first 100 days of the Sanders administration. A Sanders administration could also make official--as the Obama administration did--the policy of non-enforcement of the federal marijuana laws. It could extend that policy to include even states that have not legalized marijuana.
Indeed, to my mind, blanket non-enforcement of federal marijuana laws would arguably be more justifiable than the Obama (and unofficial Trump) policy of non-enforcement only in states that have legalized. I am dubious about claims of a broad presidential power not to enforce laws a particular administration does not happen to like. The executive branch does, however, necessarily exercise prosecutorial discretion, and resource constraints are a well-established basis for establishing enforcement priorities. That was always the best justification for prioritizing immigration enforcement against people who posed a threat to public safety or national security. It was never a very good justification for prioritizing marijuana enforcement in states in which it is illegal. However, a Sanders administration judgment that marijuana enforcement should be nationally deprioritized relative to other law enforcement objectives would be defensible on resource allocation grounds.
The Sanders proposal also promises to "review all marijuana convictions - both federal and state - for expungement and re-sentencing. All past convictions will be expunged." I assume this means that people currently imprisoned will have their sentences reviewed and considered for both expungement and re-sentencing, while people who have completed their sentences will simply receive expungements. One can raise many questions about the idea. Does it apply only to people who were convicted of personal-use possession? If not, where's the line? Etc. For now, I'll just make the point that a President has no power to expunge or order re-sentencing with respect to state convictions. The pardon power is broad and probably provides a simpler mechanism for people convicted of federal crimes, but it too is limited to federal offenses. I don't know how "state" entered into the plan. I haven't seen any serious effort to defend it.
To its credit, the Sanders plan does call for action by Congress. A federal statute could completely legalize marijuana at the federal level and could pre-empt all state laws restricting marijuana. But to the extent that the Sanders proposal implies--and it not just implies but says--that a President acting on his own can eliminate state law penalties, that's wrong.
The Sanders plan also suggests that the federal government will use the promise of federal funding in order to induce states to cooperate with decriminalization. That's a possibility--but only if authorized by Congress. Litigation by state and local governments rightly challenged the Trump administration policy of withholding federal funds from so-called sanctuary jurisdictions on the ground that the Supreme Court Spending Power cases require a clear statement by Congress in order for the federal government to condition the expenditure of federal funds on state participation in some federal program. Just as Congress could pre-empt state marijuana laws by federal statute, so Congress could use federal funds to incentivize states to participate in various federal programs. But the President acting alone cannot withhold federal funds.
The Sanders webpage is a little vague on the conditional spending point. It's possible that his people understand that the carrot of federal funds can only be doled out by Congress (or the executive via a delegation from Congress). But a plain reading of the Sanders language at least strongly suggests that a President Sanders acting alone could wield the Spending Power. He cannot.
Bottom Line: Through administrative action, the executive branch could effectively eliminate the federal role in marijuana criminalization. But the Sanders proposal over-promises. Most charitably, it should be read as a blueprint for Congressional action.