> It is a huge tactical blunder that will force the states' rights issue into court and either result in a victory for the states or massive public discontent about federal overthrow of popular state policies.

The states already lost; this already went to the Supreme Court before Congress restricted such prosecution, and the feds won completely.

What will go to court next—unless Rohrabacher-Farr fails to be renewed (it's included in the most recent stopgap spending measure, but that expires, IIRC, later this month) before any prosecutions under the new DoJ policy—will not be a Constitutional states rights issue, but a federal statutory interpretation issue over whether DoJ is prohibited by Congress from this action.

> The states already lost

precisely. which is why we need the feds to try and enforce the law again in order to relitigate it.

That's not how this works. The court operates under the rule of stare decsis which would already make this a tough hill to climb. Even more, the line of reasoning in the decision agreeing to federal restriction of in-state marijuana sales goes all the way back to the great depression and is really unlikely to be overturned in just over a decade since it was decided last time.

> the court operates under the rule of stare decsis

Yes and no. If you have a decision on one set of facts made on one basis just come up with another set of facts and another basis where you can get a opposing result without necessary logical conflict and you are all good.

The rat's nest of federal law and prior opinions makes this trivial, so at the end of the day, all legal opinions are arbitrary, and the only actual basis for any decision is whether or not it serves the interests of the court, which outside of the pet peeves, biases, and corruptions of individual judges, consists mostly of the perpetuation of the institution.

The SC's power is rooted in the federal government, and it is stacked with statist/corporatist hacks, so it will always have a preference for extending federal power, but that instinct must be tempered by the threat of an over-extension which reveals the inherent weakness of their position.

Making a move against a majority of the states now, on a subject where popular opinion is clearly against them, and with an all time low level of trust and respect for the federal government would definitely not be desirable.

Normally they could just refuse to hear appeals, but the 9th circuit is in a pretty feisty mood these days so I wouldn't be too surprised if they sided with the states, which would then force the SC to either let their ruling stand, or expose themselves directly on the issue.

Either way, they either let the states keep this going, or they piss off a lot of people, and either way is bad for them and good for the states.

If Rohrabacher-Farr doesn't expire, the states will challenge the action as a violation of federal statute (where they've won before against the Feds trying to narrowly interpret Rohrabacher-Farr) rather than launching a Constitutional challenge of on grounds where there is crystal clear Supreme Court precedent against them, and little reason to believe the Court has moved in their favor.

Even if they also raise the Constitutional argument, a Court that fears public opinion as much as you suggest would likely take the less precedent-disturbing approach to the popular result by resting a decision on Rohrabacher-Farr (even if that took a somewhat expansive interpretation of that prohibition on DoJ use of funds) rather than overturning Gonzalez v. Raich.

I agree. The cole memo was a real half-assed political approach in the first place, perhaps necessary at the time. This is a move coming at a time when this now state legal industry is gaining widespread popularity and acceptance and most importantly income.

It’s time to challenge the feds on the outdated CSA classification of marijuana as schedule one in general, in addition to forcing another states rights debate.

Also as I understand it, the only argument for the constitutional acceptance of the CSA is essentially the feds rights to govern interstate commerce. In this case they’re trying assert that right in an industry which is essentially operating within single states where the legality has been democratically assessed. IANAL, but I think this fact has some weight behind it in the states favor.

Reinterpreting “interstate commerce” to mean “commerce that actually involves money, goods, or services crossing state lines” would be a huge deal. It would essentially overturn Wickard v Filburn and put the brakes on a huge number of federal laws that exist to compel the states to do things. It seems very, very unlikely that the SC would make such a move, but it would be spectacularly welcome for us strict-constructionists.

As I understand it, the Supreme Court already ruled against states' right on this matter in Gonzales v. Raich. That case was about medical marijuana, but I don't think that matters.

(IANAL.)

The composition of the court has changed quite a bit since then as has public opinion.

Cannabis is now legal for medical use in 29 states. Many of these laws were passed through the referendum process. That is a lot of democracy to overrule from a bench in D.C.

I'm sure conservatives would put up w/cannabis in exchange for effectively overturning Roe vs Wade, which is the effect this would have precedentally.

It was all the "liberals" and the phony "originalist" Scalia who ruled for the government in Gonzales.

https://en.wikipedia.org/wiki/Gonzales_v._Raich

That is all B.S. though. The real issue is federal vs. state power and that has nothing to do with left and right.

Only 20% of Americans polled are against abortion entirely, it's not the powerful topic it used to be. You're right that marijuana prohibition is not a strongly supported topic either, or at least one that is met with a growing indifference. Almost no one (outside of Sessions) seems to have held strong opinions on the matter.

But regardless I highly, highly doubt this one law being overturned could be equated to states having free reign to do whatever they like, regardless of federal law. There are tons of these individual issues that are finely regulated between state and federal power balances.

Not to mention the Supreme Court doesn't work like politics where you trade one issue for going easy on another.

Roe isn't based on the commerce clause, so overturning Raich's Commerce Clause application wouldn't be particularly relevant to it.

OTOH, dodging the Commerce Clause and adopting a broad 10th Amendment interpretation might affect Roe, but a 10th Amendment interpretation powerful enough to affect otherwise Constitutional federal legislation (which Roe is not) would have broad and severe effects on federal power generally, far beyond marijuana policy and Roe.

We forget that America cares very little for democracy, being largely an oligarchy.

Thanks for reiterating this point. It’s hard to focus on the silver lining when it’s issues you care about.