The Trump administration has a peculiar view of federalism. The Trump White House believes the Obama-era guidelines designed to expand restroom access to transgender students are an offense against the 10th Amendment. Yet at the same time, the administration also warned the public to expect a crackdown on those states that have legalized recreational marijuana use. Presumably, unlike public restrooms, that’s an issue the White House believes should not devolve to the states, but the logic here appears arbitrary and contradictory. From a strictly constitutionalist perspective, it is. Only through the lens of social conservatism can this conflict be reconciled.
“It’s a states’ rights issue,” declared White House Press Secretary Sean Spicer when expounding on the administration’s decision to repeal guidelines promoting transgender bathroom use. “If a state wants to pass a law or rule or an organization wants to do something in compliance with the state law, that’s their right. It shouldn’t be the federal government getting in the way of this.”
That makes sense. After all, these guidelines were just that—guidelines, not regulation or even “executive action.” Second, they had already suffered a defeat in federal court. Last August, a Texas judge put a hold on the implementation of Obama’s directive because it directly contradicted “existing legislative and regulatory text.” The American left has expressed unreserved anxiety over the repeal of a guideline that had not been enforced for over six months. The White House’s legal reasoning dovetails with federal court rulings and, by deferring to the 10th Amendment, the White House applied a solid constitutional rationale to their actions.
Yet on that same day—in that same briefing—Spicer alerted the nation that a Department of Justice-led “crackdown” was coming for states that had legalized recreational marijuana use. “I think that when you see something like the opioid addiction crisis blossoming in so many states around this country, the last thing we should be doing is encouraging people,” Spicer said.
Federal law and subsequent Supreme Court decisions have affirmed the federal government’s right to regulate and police drug use, and marijuana remains a Schedule 1 drug. That itself is controversial; being a Schedule 1 substance means being determined by the FDA to have no acceptable medical use in the United States. But Spicer insisted that he would abide by a 2014 congressional rider denying the DOJ funding to prosecute those who are prescribed marijuana for medicinal purposes.
It is probably wildly imprudent for the administration to take this course. We are not talking about sanctuary cities where a handful of ideologically homogenous legislators in dark blue enclaves buck the rule of law. Marijuana is legal in eight states, most of which came to that reform via ballot initiative. To eschew the executive prerogative of prosecutorial discretion and enforce supremacy over the states on this issue doesn’t thwart the will of a small cabal of bureaucrats but the majority of statewide voters in California, Oregon, Alaska, Washington, Nevada, Maine, Massachusetts, and Colorado.
Some might see this as lawless chaos; others, as the states exercising their sovereignty. Whatever your view, all can agree that it is a product of the confusion resulting from the legally ambiguous netherworld marijuana laws currently inhabit. It is incumbent on Congress to reform these laws, but its members seem disinclined to resolve this matter. Still, galling contradictions in the law aside, the government has every right to police marijuana in states that have decriminalized or legalized it.
The question remains: Why does the White House think transgender bathroom rights are a state’s rights issue but recreational intoxicants are not? What is the logic? It’s surely not legal and it’s definitely not deference to political expediency. If the administration was truly committed to eschewing all forms of prosecutorial discretion, why does Obama’s Deferred Action for Childhood Arrivals (DACA) remain on the books? What we are left to conclude is that the administration is displaying fealty to the traditional views of the vastly underestimated social conservative.
President Donald Trump is many things, but socially conservative isn’t one of them. Although he does have a healthy antipathy toward substance abuse, the president initially expressed dissatisfaction with a North Carolina law compelling its citizens to use the bathroom of their gender at birth. Attorney General Jeff Sessions has no such qualms about policing virtue. After all, “good people don’t smoke marijuana.”
Social conservatives have been woefully misjudged and unduly dismissed. In embracing a compromising figure like Trump, they have sacrificed consistency for power—a tradeoff many no doubt feel is a desperate measure called for by these desperate times. Yet the social conservative’s tendency toward martyrdom by fighting long ago lost cultural conflicts has not abated. The fact that a new offensive is coming does, however, communicate clearly to their detractors that social conservatism’s days are far from numbered. Maybe that’s the whole point.