Perhaps it was a fit of over exuberance, but when the states of Washington and Colorado approved referendums legalizing the use of marijuana, it struck me as a pretty good time for a second-term, Democratic president, who sought to trademark the word audacious, to embrace the will of the people. I went so far as to muse how legalization in some places would affect the pursuit of prosecution elsewhere.
What was I thinking?
From the New York Times :
Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.
To put it a bit more clearly, the Obama Department of Justice has no intention of either honoring the laws of the states of Washington or Colorado, and plans to grasp the old Schedule 1 crime until it’s pried from its cold, dead fingers. The feds are not going to stop the War on Demon Marijuana. No way. No how.
Why? Why would such an enlightened president, who neo-cons place just to the left of Trotsky, reject the will of the people?
“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,” {Seattle United States Attorney Jenny A. Durkan] said. “Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law.”
Well, yeah. We know that the feds have yet to come to grips with the fact that the citizens of some states think that laws passed after a showing of Reefer Madness on the big screen in the house chamber, but what about the fact that Schedule I, meaning that a drug is highly abused and has no medicinal benefit, is total nonsense? The only people in Congress who still believe that also believe that women’s vaginas can magically reject the sperm of rapists.
The Times runs through the various responses available to the feds, to sue the states to prevent the law from going into effect, to take up the slack of arrest and prosecution in state courts by overloading federal courts, or, the most painful and effective tool in the federal arsenal, to cut off federal funding.
While supporters of President Obama may not have switched their votes to Mitt Romney in light of this reaction, I bet they wish they could vote for Ronald Reagan. His script writers would have understood.
That the federal government isn’t going to accept that fact that the citizens of two of these United States have decided that they want to control their own lives, to exercise those rights that were supposed to be assured by the Constitution under basic notions of federalism, not to mention the 10th Amendment, really comes as no surprise.
As Congress, with the acquiescence of the courts, have usurped control over criminal laws far beyond Jefferson’s wildest imagination, it was all fine and dandy as long as everybody was on the same page. Who cared whether the Drug War was fought in state courts or federal, by local cops or DEA agents? They were all on the same team, and that’s what really mattered.
But now that a split has arisen, where suddenly citizens have chosen to hop off the drug war train and want to run their states their own way, we have a crisis abrewing.
That marijuana remains a schedule I drug isn’t likely to change a lot of minds about where the law should be, and the feds reliance on this archaic law to tell citizens that their votes don’t matter nearly as much as Congress, isn’t likely to change any minds. President Obama probably hates the fact that he’s been thrust into the middle of this, even though I suspect he’s got no greater beef with marijuana than he did with gay marriage. He was against it until he caught a whiff of public opinion being overwhelmingly for it, and being a man of integrity, he flip-flopped. Marijuana is likely no different.
But two states don’t make a tidal wave, and he isn’t prepared to suffer the wrath of the people for being the liberal president who turned America into a druggie state with a side of munchies. So instead, he’s prepared to be the president who refused to accept the will of the voters of Colorado and Washington, just as he was when it came to medicinal marijuana in California, and openly admitted that the federal government will use any method it can to dictate to the states what will be a crime.
It will be interesting to see which legacy the president picks. And it will be equally interesting to see what the States of Colorado and Washington, and their respective federal district courts, have to say about it. This may well be the start of a constitutional crisis on unwarranted federal expansion on crime, and if so, it’s about time.
Thanks for another thoughtful post on this topic. I wonder what you think about the chances of a 10th amendment challenge to continued federal enforcement of marijuana laws in Colorado and Washington. I don’t know much about these kinds of things, but it seems plausible to me that e.g. Printz v. US might force the feds to do all the work themselves if they want to keep prosecuting people in those states. On the other hand, maybe cases like South Dakota v. Dole mean that the feds can strong-arm CO and WA back into line. I agree with you that it’s going to be interesting to see what happens.
A mixture of all of them, I’d bet. This is a ‘contempt of the Federal Government’ charge (yes, I know no such charge exists legally) and will be punished to the full extent capable. It’s not a question of what the citizens want, or what the States decide; no one is allowed to defy the will of the Federal Government without consequences.
That will be the attitude, at least. Of course, it will be interesting to see how local law enforcement (upon which federal LEOs rely heavily) will respond. Simply being passive-aggressive (‘Oh, did you want that documentation with the arrest report? You didn’t request it, so we kept it.’) can be pretty obstructive, and many local law enforcement groups don’t like the Feds all that much.
I was surprised and delighted when those states legalized marijuana.
So this news makes me fairly upset. I guess it’s time to go find some petitions to sign.
Thanks for writing about this issue.
“he isn’t prepared to suffer the wrath of the people for being the liberal president who turned America into a druggie state with a side of munchies.”
Do you really think this is why he’s doing this? There’s enough of the people who favor legalization — especially in states that he carried — that I don’t think it’s a populism thing.
I lean more toward him wanting to keep the $40bn law enforcement subsidy alive, myself. Maybe I’m just cynical.
I understand that the Justice Department could pursue a possession case but I am confused as to why they would. What are the chances a jury would convict knowing possession is legal according state law? Even if the Justice Department successfully sues the states, I still find a conviction doubtful. I realize that DAs love to threaten people but don’t failures to convict make them look bad?
I can’t imagine it for a number of reasons, not the least of which is I don’t know many federal judges willing to let their courtrooms be turned into night court. But it remains a possibility.
He’s the President. He gets to spend lots of money. If it doesn’t go one place, it goes another.
On most civil liberties issues Obama is to the right of Bush. He went after medical marijuana harder than Bush, has cracked down harder on whistleblowerst than Bush, asserts more rights to hold people w/o trial than Bush did, went after undocumented immigrants harder than Bush did, and so on.
He’s not a left winger. He is, as the author suggests, substantially to the right of saint Ronald Reagan, and so far to the right of Nixon that he’s off the map.
This reactionary-style circle-the-wagons federalism provides unfortunate ammunition for the proponents of “states rights,” formerly the stalking horse for segregationists and other backward-thinking types. Looks pretty short-sighted/knee-jerk pro-authoritarian/not well thought out. So it is, indeed, about time. About 4:20, specifically.
You’re absolutely right. Most of the states-rights advocates are utterly insane, as if the civil war isn’t over yet. Then we have this federalist attack, feeding right into their hands. It’s like handing them a gift.
Sure the Feds could use hiway funds, etc as they did to lower BAC to .08 but that only punishes the politicians – like the Gov and Atty Gen of Colorado who opposed the law, but are duty bound to enforce it. While the feds do have a number of ways to fight it, so too have the pot users and their allies have a number of options. Enact medical pot laws just as NJ (with former USA atty for its Gov) did – 1st clinic opened yesterday; and NY is considering. In WA state the sin tax on pot is 25% (booze is only 22%) – which is the legal limit for Criminal USURY; once ‘they’ get a whiff of that drug called tax dollars it sure is hard to wean them off it; so maybe some intrepid fed legislator will proposed a FEDERAL excise tax on the demon weed. While i don’t think it will generate enough to negate the entire deficient, one can only hope. And think of all the $$ saved by eliminating pot from the war on drugs; and reducing one income flow to drug gangs.
what about civil disobediance – perhaps pot possessors – not even users – were to turn themselves in to fed authorities, refuse to accept the fed equivalent of an appearance ticket or an ROR and demand 3 hots and a cot in club fed for a while. Maybe the feds would have to rent Mile High Stadium to house the overflow prison population.
I think that after an initial hiccup, the feds will stand on the sideline and let it flow.
There are plenty of arguments in favor of letting it be, which are certainly persausive to those of us inclined toward dealing with marijuana rationally. And yet, there it is, right on Schedule I. We shall see.