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December 24, 2023

On Friday, December 22, the Oval Office issued a full federal pardon to all Americans who have ever used marijuana.

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The media coverage pretends to be thorough by talking about this blanket pardon’s obvious limits: it pardons people for only the federal violations, so it doesn’t get them out of state violations, and it applies only to possession and use, not to such commonly related crimes as dealing, gang involvement, weapons charges, and robbery.

This therefore sounds reasonable, moderate, even harmless.  It’s not picking a fight with the states, just dealing with federal prosecutions, not committing obvious overreach.  It sounds like just a harmless Christmas present to private individuals, the stoners who just smoke in the basement but don’t commit other crimes.

Unfortunately, as usual, appearances are deceiving.

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First, by simply pardoning everyone for a crime still on the books, the Biden-Harris regime is flouting long established federal law.  There have been federal laws for generations against the possession and use of pot.

Generally speaking (though this is not universal), Democrats are for erasing such bans (on the grounds that there are worse drugs out there), and Republicans are for keeping the bans (on the grounds that no country’s problems were ever solved by getting their population strung out on dope).  If they campaign for Congress to lift the ban, and succeed, they could then have a case for issuing retroactive pardons (subject to points two and three below).  But by doing it before Congress agrees to lift the ban, they are just repeating their frequent habit of acting as if the Executive Branch is unbounded by either the specific laws of the nation or the overarching checks and balances of our “three federal branches” system.

For this reason — steamrolling all standing congressional and judicial action like this — it is an impeachable offense.

Second, everything is precedent.  There are a few states that have decriminalized marijuana, and there are many others that are considering doing so.  Even though this blanket pardon doesn’t literally apply to state law at all, the fact of it will put more than a thumb on the scale, on the side of those state-by-state decriminalization efforts. 

In each state, the advocates for leaving the ban in place have federal law on their side.  But now that they can point to a federal pardon on the matter, there’s an undeserved claim to federal precedent that the decriminalization side can use in their arguments to counter it.  The White House has no business meddling in state law this way, in direct contradiction to longstanding federal law.

What happens if states use this pardon as the final winning argument that flips their states from the ban column into the decriminalization column?  Then the White House will have successfully used its position to drive yet another wedge between federal and state law, disrupting what ought to be a harmonious relationship, more than ever.