Marijuana Ballot Initiatives

Four Depressing Reasons to Hope Obama Won't Interfere With Pot Legalization

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In a Huffington Post essay, Drug Policy Alliance Executive Director Ethan Nadelmann suggests some reasons to be optimistic that the Obama administration will not try to obstruct implementation of the marijuana legalization initiatives approved by voters in Colorado and Washington last week. Here are his main points, along with my reasons for skepticism:

No one needs to do anything right away….The Colorado government…has until July 1, and the Washington State government until the end of next year, to issue a statewide regulatory plan. That affords plenty of time for consultation and dialogue.

We've had 16 years (since California adopted the first medical marijuana law) for "consultation and dialogue" regarding patients' access to cannabis, but so far the feds have not agreed to let states go their own way on this issue. Obama said he would but didn't. Why will the story be different with recreational use?

Whereas Attorney General Eric Holder warned California voters in October 2010 that the federal government would not allow the marijuana legalization initiative on the ballot at the time to be implemented if it won (which it did not), no such warning was forthcoming this year. Former drug czars and DEA chiefs banded together to urge Holder to speak out again, but both he and President Obama remained silent, perhaps influenced by polls showing strong support for marijuana legalization among young and independent voters in the swing state of Colorado and elsewhere.

Perhaps, but with Obama's re-election the danger of alienating those voters has passed. In 2010 Holder declared, "We will vigorously enforce the [Controlled Substances Act] against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law." After the Colorado and Washington initiatives passed last week, the Justice Department said "the Department's enforcement of the Controlled Substances Act remains unchanged." Hard to detect a shift there.

[With regard to medical marijuana,] federal prosecutors have acted most aggressively in those states, like Montana and California, which failed to adopt statewide regulation of the emerging industry, and have exercised the greatest restraint in places like New Mexico, Maine and Colorado, where state government is deeply engaged. President Obama has not entirely reneged on the pledge he made as a candidate in 2008, and reiterated as president in 2009, that the federal government would refrain from prosecuting medical marijuana providers operating legally under state law. He has the authority to declare a similar policy of restraint regarding the new laws in Colorado and Washington.

Obama's re-election slogan: "Vote for Obama; He Has Not Entirely Reneged on His Promises." I would like to believe that the Obama administration is willing to tolerate pot stores that are explicitly authorized by state law (as opposed to operating in a legal gray area, as dispensaries do in California). But that has not been the case in Colorado, where U.S. Attorney John Walsh has threatened state-authorized dispensaries and their landlords with forfeiture and prosecution (although the Marijuana Policy Project's Rob Kampia, like Nadelmann, argues that enforcement actions in Colorado have been relatively restrained).

In my conversations with foreign leaders, major Democratic Party donors and senior political advisers who have discussed drug policy with the president over the past year, all say that Obama seems inclined to pursue further reform of drug policies in a second term. Nothing dramatic, to be sure, but there's a sense that he and those close to him get it—and will say and do things in a second term that they didn't during the first.

I will believe this when I see something beyond wishing and hoping—such as commutations of the draconian drug sentences Obama used to condemn. Although it is entirely within his power to ameliorate these injustices, Obama so far he has shortened exactly one sentence.

I am less encouraged by Obama's good intentions, which may not exist and in any event have not made a difference these last four years, than I am by the practical and legal limits on federal interference. DEA agents and U.S. attorneys can make trouble, but without state and local assistance they can enforce marijuana prohibition fitfully at best. Furthermore, the pre-emption argument against legalization in Colorado and Washington seems very weak, which may explain why the Justice Department has never deployed it against medical marijuana laws. Alex Kreit, a law professor who has studied the issue, tells the Drug War Chronicle:

Opponents of these laws would love nothing more than to be able to preempt them, but there is not a viable legal theory to do that. Under the anti-commandeering principle, the federal government can't force a state to make something illegal. It can provide incentives to do so, but it can't outright force a state to criminalize marijuana.

They know they can't force a state to criminalize a given behavior, which is why the federal government has never tried to push a preemption argument on these medical marijuana laws. The federal government recognizes that's a losing battle. I would be surprised if they filed suit against Colorado or Washington saying their state laws are preempted. It would be purely a political maneuver, because they would know they would lose in court.

Instead of asking whether the Obama administration will block legalization, maybe we should ask whether it can.

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  1. I’d love to see Colorado or Washington pull a Wyoming and threaten Federal agents with arrest if they attempt to enforce marijuana prohibition. What are the Feds going to do in that situation?

    1. This is why I’m intrigued by the WA initiative using the old State Liquor Board as the distributor and seller like they used to do with alcohol. Yeah, it’s a sop to a union that was supposed to be disbanded, but it means that if the feds raid any fucking part of the chain, they’re raiding the state of Washington directly. I don’t think the governor would like that very much.

      Methinks this can’t have not been on purpose as a “don’t you even think about raiding” message.

      1. verrrrrry good point. the era of MJ prohibition is over, imo.

      2. Methinks

        FUCKYOUFUCKYOUFUCKYOUFUCKYOU

        1. He shoots, he scores!

      3. “using the old State Liquor Board as the distributor and seller”

        It wouldn’t surprise me if the D.O.J tried to charge members of the board with some R.I.C.O act type bullshit if they actually collected any ‘taxes’ on it, just to ratchet up the terror of reprisal for not toeing the line.

        1. I think you mean “towing the lion”.

          1. yes…that!

            1. I can’t help myself: it is ‘toe the line’.

          2. He’s Blue, don’t forget that.

      4. It’s not just that. State agents enforcing a law regarding a federally controlled substance are allowed by federal law to distribute that substance. So if the state stores are staffed by cops charged with keeping the pot out of the hands of kids, the feds legally can’t do anything about them. They can, however, wait outside the store and bust the customers and take their pot.

  2. These people are fucking delusional.

  3. “Obama’s re-election slogan: “Vote for Obama; He Has Not Entirely Reneged on His Promises”

    “… Yet, Because He Needs Your Votes To Get Reelected. But He (PBUH) Won’t Afterwards.”

    FIFY.

  4. OT: Buster Posey wins NL MVP, which, as much as it pains me to say, is well-deserved. But I got Miguel Cabrera over Mike Trout for AL MVP. You hear that Welch?

    1. Trout should’ve won, but the writers had to go old-school with teh triple crowns!!1! Damn the baseball nerds!

  5. I don’t think they will run the risk of allowing the Supreme Court to establish a precedent by directly suing the states. They’ll use blackmail.

    1. they won’t use jackshit. MJ prohibition is over. the feds know it. i can’t wait to show you when the feds roll over as they will. the will of the people is too strong for legalization.

      1. they won’t use jackshit.

        WRONG

        MJ prohibition is over

        Not yet, but the writing is on the wall.

        the feds know it

        Ok, you are joking, right, Dunphy?

        1. Some of the feds have an inkling of it and the fear could drive them to new levels of insanity.

  6. “Whereas Attorney General Eric Holder warned California voters in October 2010 that the federal government would not allow the marijuana legalization initiative on the ballot at the time to be implemented if it won (which it did not), no such warning was forthcoming this year. Former drug czars and DEA chiefs banded together to urge Holder to speak out again, but both he and President Obama remained silent, perhaps influenced by polls showing strong support for marijuana legalization among young and independent voters in the swing state of Colorado and elsewhere.”

    i’m going to enjoy saying i told you so, and collecting on my internet bets

    MJ LEGALIZATION IS HERE TO STAY. the feds know it. the era of prohibition is over and the feds know it.

    there will be no massive push by the feds against recreational MJ in CO and WA. it will be short lived and anemic, if it happens at all. more and more states will legalize when they see WA and CO did it with little downside and increased tax revenue as a bonus. this is reality

  7. Sullum’s right, it’s all wishful thinking.

    “In the biggest push against medical marijuana since California legalized it in 1996, the federal authorities have shut at least 600 dispensaries statewide since last October.”

    http://www.nytimes.com/2012/10…..-sick.html

    Between October of 2011 and October of 2012, the Obama Administration shut down 600 medical marijuana dispensaries in California.

    There is no way the the Obama Administration is going to treat dispensaries selling for recreational purposes better than it has treated dispensaries selling to patients for medical reasons.

    No f’ing way.

    1. The DEA SWAT teams are loading up, snorting up and getting ready to bust down some fucking doors!

      1. !Erria!

      2. JESUS CHRIST MARIE, THEY’RE MINERALS

      3. Hide rover!

  8. OT, but related to the Electoral College thread:

    Do Americans realize how stupid the direct election of US Senators really is? It’s redundant and wasteful since we already have the House of Representatives.

    Bicameral legislatures based on the British model were devised to have a lower house directly responsible to the people and an upper house, selected based on merit and not popularity, that would check the powers of the lower house.

    Yet, with direct direct election, we have a trifecta of idiocy by having wasteful redundancy, no check against the powers of the House, and no representation of the state governments at the federal level.

    Anyway, that’s my little rant for today.

    1. Yes. But the lower house was also there to check the higher house.

      1. Yes, it was the same forwards and backwards.

        The Senate was meant to check populist tendencies in the House, and the House was meant to check the undemocratic tendencies of the Senate.

        But, now that the Senate is chosen by the same group that selects the House, the dysfunctions that were originally limited to the House by the powers given to the Senate have run rampant.

        1. They operate as a tag team with the Judicial and Executive branches to fuck us over but good. Modern democracy in action.

    2. Among other things, the Senate was supposed to be a check on federal power by the states.

      Because senators were ultimately accountable to the state legislatures when the state legislatures picked the senators, the idea was that senators would be reluctant to do anything that might increase federal power at the expense of the state legislatures.

      Certainly, once we provided for the direct election of Senators, federal power seems to have increased dramatically at the expense of the states. I don’t know of any senators who are especially worried right now about facing the wrath of their state legislatures for diminishing the state legislature’s power.

      State legislatures electing senators was sort of the lynchpin of federalism, and once we got rid of it, federalism has been circling the drain ever since.

      1. A related point is that the relevance of state legislature has declined precipitously since the direct election of Senators.

        1. Yeah, and I can’t even fault them for it.

          I have no idea who represents me in the state legislature.

          I like Nevada where they only let the legislature meet once every two years–and even then only for 120 days.

          If California were like that, it would be better.

  9. There are no good reasons to hope that he won’t. I hope that he does, big time, and that he falls face first into a massive pile of shit in the attempt. I hope it makes Benghazi look like nothing in comparison.

    Go Obozo, go! And please, go there yourself and address the citizens of CO and WA right before the big raids, and please, wear that fucking hat!

  10. Obama’s will support drug legalization. That’s what he does, he evolves. Besides, what does he have to lose? He’s lame duck.

    By the time big tabacco gets in on the game, starts making a tidy profit (and running those mom and pop joints out of business) and drug legalization becomes a pubic safety and “fairness” issue for the nannies, Obama will be out of office.

    Do you trust the US government to protect legal pot business from the corruption of the drug cartels? Because I don’t think the Mexican drug lords will change their careers when their most lucrative market does legal.

    1. “That’s what he does, he evolves.”

      He doesn’t evolve towards letting people make their own decisions, though. He evolves towards making people accept stuff.

      If you could convince him that what he was doing was forcing other people to do or accept what was best for them, he might evolve. But that’s a hard sell when it comes to the drug war.

  11. Jacob Sullum,

    Too pessimistic

    Prior to 2012, everything the Obama administration did must be seen in the light of “might this cost BHO the election.” Because, let’s face it, if any president loses their reelection campaign they’re automatically considered a loser for the rest of history by everyone including/especially their own party.

    Obama’s real opinion–to the extent that there is such a thing–probably is best expressed in his comment from the 2004(?) race where he says we need to “rethink and decriminalize our marijuana laws.”

    Bland, technocratic, vague-with-room-to-weasel: yes, it’s all these things.

    So it looks like we’re going to kill the War on Pot, if not on all drugs, albeit we will do it slowly.

    So Obama had a strong incentive to treat drug reformers badly. They’re part of the LEFT-coalition and so they needed to be sacrificed to appease the moderates.

    Once it was clear that Mitt would get the R-nomination, the logic gained momentum. No one knows Romney’s core beliefs about anything except (1) people who make money are ubermenschen and others are losers and (2) alcohol/tobacco/drugs are bad and they will keep you from getting your own planet in the afterlife.

    Also, Obama had to play against type that he was some sort of dangerous radical. Everyone’s already freaked out by the whole “black president” thing. He did a pretty good job of it.

    1. [continued]

      Finally, as the head of a massive Federal Leviathan, Obama is in charge of a large anti-drug bureaucracy with power held by media-hungry prosecutors, asset-forfeiture addicted local cops, liars at ONDCP, mercenaries at DEA, etc. If you make war on your own bureaucracy, you shorten your expected political lifespan.

      Let’s cut the bullshit: Despite some encouraging signals from a significant part of the Right, legalizing pot is basically Lefty issue (with an assist from libertarians).

      [NOTE: My comment got scrambled due to the character limits.

      reason editors: please get rid of the character limits. or at least expand them.]

      1. I see no evidence that Obama gives a shit about freedom, drug legalization, or people being locked up.

        The first and last question Obama asks himself when making any decision is “What’s in it for me?” So, how does he benefit from letting legalization go forward? I can’t see any benefit.

        But, there are downsides. You name a few, but perhaps the biggest one is that if he doesn’t stomp on this now, states might get the idea they don’t have to tow the federal lion.

        Prediction: the DEA/DOJ will come down like a ton of bricks on retailers and growers, under the pretext that some of it might cross a state line.

        1. I see no evidence that Obama gives a shit about freedom, drug legalization, or people being locked up.

          Disagree. Obama significantly narrowed the crack-power cocaine sentencing disparity.

          The first and last question Obama asks himself when making any decision is “What’s in it for me?

          I agree. It was in the very first part of Pt. 1 of my comment. 🙂

          So, how does he benefit from letting legalization go forward? I can’t see any benefit.

          Well, it accomplishes two(2) things: (1)it pays off two of his most loyal constituencies, Blacks and Youths and (2)if shit goes haywire–say with a spike in highway deaths or tons of youtube videos with five-year-olds taking massive bong hits–Obama can say Wasn’t me!

          So, yes, it’s an expenditure of political capital. But the upside far outweighs the downside; the expected value pay-off is high as fuck.

  12. lol, gotta love Americas bought and paid for politics!

    http://www.Privatized-Web.tk

  13. Instead of asking whether the Obama administration will block legalization, maybe we should ask whether it can.

    Sure it can. Make outlawing pot a requirement for federal highway funds, and not one single state will pass a law in the legislature. The rulemaking in CO and WA will grind to a halt. Ways will be found to qualify for that money, regardless of voter referenda.

    If Obama supports this, it gets through the Senate. And I really can’t see the Repubs blocking it in the House.

    1. Dude, you can outlaw the regulation. But can you make state and local LEOs enforce their laws? Nah-ah.

      This is how MMJ distribution got so wacked in LA. They never made any reasonable rules so that shit just grew like weeds, out of control.

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