Do Republicans Still Believe in States' Rights? Sessions's Marijuana Policy Is Ultimate Test

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Attorney General Jeff Sessions at the opening session of the Global Forum on Asset Recovery in Washington, D.C., on December 4. GETTY/Chip Somodevilla

When Attorney General Jeff Sessions rescinded the "Cole memo" on Thursday, giving federal prosecutors leeway to go after marijuana violations in states where the drug is legal, he opened up a fiery debate on whether the Republican Party still stands by one of its core planks: states’ rights.

Related: Can Jeff Sessions end legal marijuana? Key Obama-era policy to be reversed

That policy, known as the Cole memo, was one of a handful of barriers holding a line between federal and state governments in the convoluted area of marijuana regulation. With the policy change, Sessions moved that line closer to federal control, something he’s long been pushing for.  

But while 29 states (plus the District of Columbia) have voted overwhelmingly to legalize medical marijuana, and eight states (plus the District of Columbia) have legalized recreational marijuana, Sessions doesn’t see this as a states’ rights issue. "I do not believe there’s any argument, because a state legalized marijuana, that the federal law against marijuana is no longer in existence," he told radio host Hugh Hewitt back in October. 

Instead, Sessions and Deputy Attorney General Rod Rosenstein have pivoted the discussion to the “rule of law,” a phrase they’ve used in abundance this week. The previous Obama-era marijuana policy "undermines the rule of law,” Sessions said on January 4. 

Rosenstein used that same phrase a whopping 19 times in a single speech on January 5.

01_05_JeffSessions Attorney General Jeff Sessions at the opening session of the Global Forum on Asset Recovery in Washington, D.C., on December 4. GETTY/Chip Somodevilla

Indeed, marijuana is illegal at the federal level, no matter how many states legalize it. Republicans, however, are more divided about the issue. Do they support the Republican administration, despite its flip-flop, or do they support their party's position on states' rights and, perhaps most of all, their constituents' desires? 

The gray area is home to a burgeoning split in the party. “This is a states’ rights issue, and the federal government has better things to focus on,” Senator Rand Paul of Kentucky said in a statement.

Likewise, Senator Cory Gardner (R-Colo.) took to the Senate floor on Thursday, calling the policy change “extremely alarming.” Sessions, according to Gardner, had in fact promised him that his Department of Justice wouldn't make marijuana prosecution a priority. 

"I am prepared to take all steps necessary, including holding DOJ nominees, until the attorney general lives up to the commitment he made to me prior to his confirmation,” Gardner said. “In 2016, President Trump said marijuana legalization should be left up to the states, and I agree."

And for Republicans, leaving it up to the states and favoring individual rights has been central to the party's stance on many core issues, among them abortion, Obamacare, guns and gay marriage. 

House Speaker Paul Ryan, known to sometimes speak in lofty terms, summed it up neatly on a Wisconsin radio show during the 2016 presidential campaign: "There is, underneath all of this, a big fight between two political philosophies."

The liberal philosophy, according to Ryan, is "one that tries to take us off of our founding philosophy, off of the founding principles and into a state, a government where we lose our freedoms, our self-determination, our liberties. Where we no longer have equality before the law, but we have this sort of arrogant, paternalistic, condescending government-knows-best philosophy.”

Ryan did not immediately respond to Newsweek's request for comment on the Cole memo.

Marijuana "is going to be a test" of that political philosophy, Nicholas Sarwark, chairman of the Libertarian Party, told Newsweek. “I doubt that the Republican Party has a strong enough core ideology on anything right now, let alone states' rights."

Libertarians, though sometimes aligned with Republican positions, are more consistent in their push for federalism, Sarwark said. 

Jonathan Blanks, a fellow at libertarian think tank the Cato Institute, calls Sessions's position on marijuana "situational constitutionalism." Citing the 10th Amendment, he said, "Federalism is ingrained in the constitution.... What happens within state borders should be the state's business."

But, he added, when it comes to drug policy, otherwise pro-states' rights politicians tend to renege.

It's a key criticism from Democrats. Surely, neither party is wholly consistent in its messaging, but demands for states’ rights, individual rights and small government have been such a central component of the GOP's stances on hot-button issues that the flip-flop is jarring. Even the Trump administration, with its unrelenting reduction of federal regulations, has held a confusing stance on this issue. 

Donald Trump promised during the campaign that he wouldn't touch the marijuana issue, but since his inauguration, he's been notably quiet on it, leaving it to his attorney general to handle. The work of attorneys general is typically supposed to reflect the White House's agenda, but it's unclear if that's the case here. 

Related: How Jeff Sessions plans to end medical marijuana 

“It’s funny, but not actually funny, that states’ rights matter to the Trump administration and Republicans only when it’s expedient,” Representative Ted Lieu (D-Calif.) told Newsweek. “Sessions's vendetta against democratically legalized marijuana is a humongous waste of federal resources and has proven to be unpopular at the state and national level.”

For now, marijuana legalization advocates, and perhaps states' rights advocates, will have to keep an eye on the precarious status of the Rohrabacher-Farr Amendment (which blocks the Justice Department from using any money to prosecute medical marijuana usage in states where it's legal) as a next step in the debate. Since the amendment is a budget rider, Congress votes on it every year as part of the federal budget. Congress has stalled that vote twice now, so it's unclear whether Rohrabacher-Farr will be included in the package. 

The Department of Justice and the White House did not immediately respond to requests for comment.

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