Obama Preps Marijuana Crackdown

Civil libertarians like me, already angry and disappointed over the Obama administration’s many broken promises when it comes to the drug war, are likely to be irritated even more now that two states have legalized the recreational use of marijuana. It seems the administration is preparing for a federal crackdown on pot users in those states:

enior 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…

Federal officials spoke on condition of anonymity because they were not authorized to discuss the matter. Several cautioned that the issue had raised complex legal and policy considerations — including enforcement priorities, litigation strategy and the impact of international antidrug treaties — that remain unresolved, and that no decision was imminent.

The Obama administration declined to comment on the deliberations, but pointed to a statement the Justice Department issued on Wednesday — the day before the initiative took effect in Washington — in the name of the United States attorney in Seattle, Jenny A. Durkan. She warned Washington residents that the drug remained illegal.

“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,” she 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.”…

One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state. The department could then obtain a court ruling that federal law trumps the state one.

A more aggressive option is for the Justice Department to file lawsuits against the states to prevent them from setting up systems to regulate and tax marijuana, as the initiatives contemplated. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be “severed” from those eliminating state prohibitions — or whether the entire initiatives must be struck down.

Another potential avenue would be to cut off federal grants to the states unless their legislatures restored antimarijuana laws, said Gregory Katsas, who led the civil division of the Justice Department during the George W. Bush administration.

Yes, by all means we need to put more pot smokers in jail — just like we should have put President Obama in jail when he admittedly smoked pot as a young man. That would have helped him — and the country — a lot, wouldn’t it?

Comments

  1. hoku says

    I’m a staunch civil libertarian, completely pro-pot, and I live in Colorado and California. With that in mind, the President is in the right here. As much as I hate the stupid war on drugs, it is the law of the land. What Colorado and Washington are doing is nullification, and is no different that what the south did (and does) to gay and minority rights. Nullification is wrong, and unconstitutional.

  2. brucegee1962 says

    But there are plenty of cases where the president has used his discretion as chief law enforcer to de-emphasize particular laws by shifting resources away from their prosecution. He doesn’t even have to issue a statement saying “pot is ok now” — he just has to NOT DO ANYTHING.

    Seriously, I don’t see the political upside for him in a crackdown. Gallup said yesterday that the majority of the public is against the federal government getting involved — and that was EVERYBODY. If you were to only poll people who voted for him, I’m sure 80% plus would tell him to leave it alone.

    The ONLY people who will be happy to see a crackdown will be people who would never vote for him. I thought the rule in Washington was “Dance with the one who brought you.”

  3. says

    The problem is, if CO and WA are permitted to nullify federal drug laws, what’s to stop LA from nullifying the Affordable Care Act, TX from nullifying the Clean Air Act, or MS from nullifying theVoter Rights Act?

    As much as I see the war in pot as a huge waste of resources, these state laws have major implications for federally law.

  4. eric says

    Hoku, the administration could treat this like they treat DOMA and choose not to enforce a law Congress has passed.

    Secondly, as the quote points out, the feds don’t generally arrest local users anyway. So going after them is not simply continued enforcement of a law of the land, its actually enforcing it more stringently in Colorado and Washington than anywhere else. That arguably goes against the civil rights of Colorado and Washington citizens. You can’t only arrest women pot-smokers. Or only hispanic pot-smokers. Or only Washingtonian pot-smokers.

    I can see your argument when it comes to the tax set-up. Its certainly a problem if they are taxing a federally illegal substance. And the last strategy (witholding grant funds for unrelated programs, like education or transportation) is an obnoxious strong-arm but perfectly legal strategy that the feds have used before, most famously to compel states to raise the drinking age to 21.

  5. newfie says

    International treaties? Like being a signatory to an internation treaty on torture? No problem with being war criminals, but can’t have anybody smoking a bit of pot… must not piss off off big pharma or the private prision industry.

  6. abb3w says

    Of course, one thing that could be done is that the discrepancy could be reconciled. The Governors of Colorado and Washington should be lobbying (read: arm-twisting) their Federal Representatives and Senators to introduce legislation to amend the US Code to legalize marijuana.

    Ideally, president Obama might also do some arm-twisting in that direction, but that seems just not realistic before 2014. Immigration reform seems the most likely next expenditure of his political capital if the budget crisis ever gets resolved.

  7. says

    The feds are going to have some problems with the AG’s, DA’s and every police agency in those two states. Sure there are some of the GOPinheads out there who will cheer for the feds comin’ down on the fuckin’ hippies but after they’ve arrested everybody that they can put in jail or gotten the courts so fucking clogged up with trials and appeals they’ll figure out a way to gum up the works.

    I don’t smoke and haven’t smoked pot for about 15 years. It was a condition of employment when I worked at Verizon that you not do so and I valued my job more than I did getting high. Now? I just don’t really give a shit one way or the other, but I think the fed getting more involved with this than it did with DOMA after 2008 is fucking stupid.

  8. psweet says

    I don’t see that simply decriminalizing something at the state level constitutes nullification of the federal law. Taxing and regulating it would be a problem, but simply saying that the state no longer considers something to be criminal doesn’t negate the Federal laws that do. The question, I suppose, is whether a state can refuse to spend it’s resources enforcing Federal law.

  9. says

    Any loss of funding to the Justice Dept. due to sequestration and/or the “fiscal cliff” is tax money well-saved if they are wasting it on these types of “crimes.”

  10. Red-Green in Blue says

    eric,

    And the last strategy (witholding grant funds for unrelated programs, like education or transportation) is an obnoxious strong-arm but perfectly legal strategy that the feds have used before, most famously to compel states to raise the drinking age to 21.

    Obnoxious it certainly is: I thought power was supposed to be vested in the people in the USA? :-/

    And WA and CO are both net contributors to federal budgets. Is the federal government in a position to withhold money? Would that not risk alienating those states to the extent that they would support unilaterally taking control of tax collection? And what would DC do then?

  11. eric says

    And WA and CO are both net contributors to federal budgets. Is the federal government in a position to withhold money? Would that not risk alienating those states to the extent that they would support unilaterally taking control of tax collection? And what would DC do then?

    Sentence 1: I am not sure why this matters. The fed doesn’t lose their tax dollars in any event.
    Sentence 2: yes, they are. Congress is the federal budget authority. If they say that next year CO gets no money for X, then next year CO gets no money for X.
    Sentence 3: maybe, but as I noted, the feds have done this before. I have no idea what you’re talking about in terms of ‘unilaterally taking control of tax collection.’ The states typically have little to do with federal tax payments. Are you trying to imply that CO or WA would tell their citizens not to pay their federal income taxes? I highly doubt that.
    Sentence 4: what does DC have to do with any of this?

  12. Michael Heath says

    Ed’s blog post title reads:

    Obama Preps Marijuana Crackdown

    Ed’s lede partly reads:

    It seems the administration is preparing for a federal crackdown on pot users in those states

    [emphasis in both above quotes mine - MH]

    I read the full NYTs article twice and didn’t see anything to justify the claim the Obama Administration is preparing a “crackdown”. Instead I read a report about the Administration struggling to come-up with a coherent and consistent policy given the reality the states are in direct violation of the Constitution with the laws they recently passed. The NYTs framed their activity as “considering plans” and a “debate” about how to react, not “preparation for a crackdown”. So I don’t think your representation of the Obama’s Administration’s plans is accurate if we used only the cited article as our evidence.

    I instead see them struggling to come up with a plan in light of the fact we’re discussing criminal law where a recent SCOTUS ruling validated the feds, not the states, have the power here. Where I would hope the federal criminal laws would generally be consistently administrated. So I laud the Administration that “generally” doesn’t apply here. They could have reactively decided to go gung-ho after the “criminals”, but instead we observe them visibly agonizing about how to square this circle. Which I don’t think you sufficiently appreciate.

    I cheered boisterously when both states passed laws legalizing pot. I disagree with the court’s ruling on Raich. However I don’t find the fed’s lack of defense of DOMA sufficiently analogous to blindly apply to this conundrum in lieu of an argument on the merits presented on this matter. That’s because I don’t see a moral hazard in not defending DOMA in the courts where I do when it comes to administration of criminal law.

    Tthe best example of failing to be consistent is how we fail to apply our laws powerful elected officials, like Ford’s pardon of Nixon which I would argue opens to the door to the Bush Administration’s use of torture. Where both set precedents further encouraging future Administrations to break the law. So I do perceive the Obama Administration as incredibly hypocritical on this matter, and in this case, favoring the powerful like Bush and Cheney while taking their job seriously when it comes to pot.

  13. greg1466 says

    I’m with the group which is firmly against the war on drugs, but acknowledges that the federal law must prevail here. It strikes me as an analogous situation to the one where we say “it doesn’t matter if you think abortions should be illegal, it is the law of the land that they are legal.”

  14. paul says

    My understanding is that the constitution guarantees the right to a trial in the state where the offense took place. So, if the feds want to try a Coloradan or a Washingtonian for possession of marijuana, they have to try them in Colorado or Washington respectively. Does that mean that the jury has to also be drawn from that state?

    Here’s what I am thinking: If a majority of voters approve of marijuana legalization, then there is a very good chance that any randomly 12 people will include at least one person who will decide not to convict someone on on marijuana charges, regardless of what the federal laws say.

  15. banjo says

    The out available to Obama might have been foreshadowed by the following comment:
    “In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,”
    Reclassifying marijuana is appropriate based on the available data and allows an easy out for all involved to save face.

  16. says

    “The Tenth Amendment added nothing to the Constitution as originally ratified, and lends no support to the contention that the people did not delegate this power to Congress in matters affecting their own personal liberty.” – US Supreme court. US v Sprague.

    What would you expect the Administration to do with regard to marijuana? There are laws on the books, and 48 other states that both enforce those laws and expect them to be enforced. And those laws have already passed Constitutional muster (Gonzales v. Raich, for one), so the analogy to DOMA fails miserably. Plus, the Administration is enforcing DOMA while the Constitutional issues are decided.

    I wouldn’t have it any other way. We’re a nation of laws. If the laws are bad, we need better laws. Not selective enforcement of those laws. You can’t just pick and choose what laws to ignore and what to enforce. We were all over the Bush Misadministration for selective enforcement of laws via “signing statements”.

    It’s Congress’ job to make laws, and the Administration’s job to enforce laws. Otherwise, we do become a de facto dictatorship, bowing to the whim of whoever is in the Oval Office. Obama is in, so pot is OK; Jeb Bush comes next and the crackdown happens. Fuck that.

    Sorry, I just hate this kind of hypocritical thinking.

  17. haitied says

    I think the difference, as far as the “Nullification” issue is concerned, is that by decriminalizing this substance you are removing restrictions on personal freedoms. As opposed to “Nullification” of laws that grant protections to people’s rights or freedoms. When I heard that Washington and Colorado passed these measures I immediately thought “What a great idea, put some pressure on an inactive and complacent federal government that has swept this issue under the carpet for too long” I am eagerly awaiting the response from the Fed.

  18. says

    “What Colorado and Washington are doing is nullification, and is no different that what the south did (and does) to gay and minority rights. Nullification is wrong, and unconstitutional.”

    If they are setting up their own systems to regulate and tax pot, then maybe it can be considered a violation of federal law. However, there is nothing about pot being illegal at the federal level that also compels a state to make it illegal. A state can certainly take its own laws off the books and not prosecute anyone for having pot, although whether they’d have to remand such people to the federal authorities is an interesting question. But since the Feds rarely engage in street-level policing, the effect would be de facto legalization even if CO and WA couldn’t regulate and tax the activity. It would still leave the black market in control, which is rather stupid, though I suspect that in CO at least the medical marijuana shops would move most of the product.

    What I would most like to see is an act of Congress that allows states an exemption to federal law on this matter if they request it (or something to that effect). Of course, fat chance of that happening with Speaker Weeping Sausage in charge.

  19. twincats says

    I wouldn’t have it any other way. We’re a nation of laws. If the laws are bad, we need better laws. Not selective enforcement of those laws. You can’t just pick and choose what laws to ignore and what to enforce. We were all over the Bush Misadministration for selective enforcement of laws via “signing statements”.

    Meanwhile, the constitutional right to have an abortion is being effectively nullified by the use of onerous TRAP laws in dozens of states as we speak…

  20. steve84 says

    @eric
    The administration is still enforcing DOMA. They are no longer defending it in court. Big difference

  21. spartan says

    “The problem is, if CO and WA are permitted to nullify federal drug laws, what’s to stop LA from nullifying the Affordable Care Act, TX from nullifying the Clean Air Act, or MS from nullifying theVoter Rights Act?”

    I’m sure this is a remedial question, but how does a change in state law ‘nullify’ the federal law, since the federal law is still in effect and can be enforced by at least federal law enforcement? Here in Michigan, at least historically (not sure about currently), the city of Ann Arbor has been known for having lax marijuana laws, possession used to be a minor fine, maybe even just a civil infraction, not sure. Is this also nullifying the more harsh state and federal laws and their penalties? Is the issue that state police have an obligation to enforce federal laws also, and it is presumed now that in CO and WA they will not be enforcing the federal law against marijuana possession? If instead of decriminalizing it, CO and WA instead designated it as a civil infraction with a fine of $1, then it’s not nullifying?

  22. hoku says

    @ Spartan
    Nullification is a specific legal/political theory that says the states have the right to overrule the federal government. It has been around as long as the constitution, and been rejected by every court for almost as long. When we say they are trying to nullify a federal law, it means they are saying that their state doesn’t have to follow it. As a theory its only slightly more credible than “sovereign citizenship”.

    @twin cats
    The reason abortion is being nullified at the state level is because with the current supreme court, it would probably be overturned if it got there. As a result, its not settled law (but only because precedent doesn’t matter when its controversial).

    @ everyone who says state refusal to enforce is not nullification
    What if Texas refused to enforce hate crime legislation? What if Alabama allowed cities to not let black people vote.
    The reason for heavy enforcement isn’t just the lax enforcement of the rules (though that is a problem). The problem is the defiant stance. Its the states proudly standing up and saying “we refuse to follow federal law”.

  23. says

    @ Kevin#18, and others who are making the same arguments:

    What would you expect the Administration to do with regard to marijuana?

    Deschedule it. The Controlled Substances act allows the DEA to unilaterally add, remove, or alter and schedule for any substance. Descheduling cannabis would immediately decriminalize it at a Federal level, solving the problem in one fell swoop.

  24. Crudely Wrott says

    In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance
    –United States attorney in Seattle, Jenny A. Durkan

    Sorry, Jenny. Congress determined no such thing. They merely declared it. And they have labored ever since, as you are laboring now, under an assumed burden. Really, lady, just put it down.

    Actually experiencing freedom and self determination is more readily attained without the imposition of burdensome laws that have the chief affect of making people constantly feel the need to look over their shoulders.

  25. Ichthyic says

    You can’t just pick and choose what laws to ignore and what to enforce.

    actually, during the civil rights era, people did do exactly that.

    and for good reason.

    but you’re a good little authoritarian, so the idea of civil disobedience would be entirely lost on you.

  26. Freeman says

    Interesting to see self-professed libertarians raising the spectre of nullification of laws protecting civil liberties to argue against nullification of laws repressing civil liberties. I guess Rosa Parks should have stayed the fuck in the back of the bus until the government decided to change the law. Sometimes it comes to the point where the people say “fuck tyranny” and impose their will on the government, as it should be.

    This administration can take whatever action they deem advisable, but whatever they do, there will be consequences. The worm has turned. Being tough on pot is now a political liability, and being smart on pot an asset.

  27. says

    “during the civil rights era”

    The way I see it, we’re STILL in “the civil rights era” with regards to a lot of people and a lot of rights. It’s not like everything was actually achieved back then (or even acknowledged as part of the fight.)
    (Not contradicting you, mind you.)

  28. freemage says

    Okay, can someone help me through this one?

    I get (and generally agree with) the argument that the Feds can’t just decide to not enforce the law (though I’d argue they should just continue to enforce the laws in CO and WA the same way they do in other states–targeting large-scale black-market operations, particularly those that cross state lines).

    Likewise, much as I dislike it, I concede that the Feds would be within their rights to use financial carrot-and-stick tactics to get CO and WA back in line.

    But I’d really appreciate it if someone would walk me through the “taxation and regulation” comments I’ve been reading here. That is to say, I seem to be missing some specific step in the reasoning that the states cannot tax or place what amounts to additional regulations on an activity the federal government has banned outright. It just means that marijuana growers have to make a choice between operating in a fully black-market fashion (and being subject to punishment by local tax authorities and health agencies) or in a semi-legal state, whereby the very steps they use to abide by state law would probably be used against them if they get busted by the Feds.

    So, what am I missing?

  29. jo1storm says

    There’s a really simple solution to that problem: legalize pot on federal level.

    Make it under the same legal solutions as alcohol production and use (21 year of age, can’t smoke and drive etc). End of problem. I think there’s even a special agency that controls that (Alcohol, tobaco and firearms? I’m not from USA). Add just one more thing for them to control and that’s it.

  30. stace says

    Astonishing that Americans, docile, supine, allow ANY government to tell them what they may inject, inhale, or ingest. Way to kow-tow!!

    So you’re saying there are countries other than uttterly dysfunctional ones like say, Somalia, whose governments allow their citizens to “inject, inhale, or ingest” anything whatsoever, up to and including dangerous drugs such as heroin and opium? Color me dubious.

  31. says

    Surely local law must override federal law, almost by definition?

    Otherwise it wouldn’t be a federal system, but a feudal system …..

  32. says

    “@eric
    The administration is still enforcing DOMA. They are no longer defending it in court. Big difference”

    In what way? If they are “enforcing” it, what is the mechanism?

    So, if CO wants other states to be okay with their stoners, will they be okay with say, GAYmarried&wreckin’itforGODLYheterosexuals couples from Moscowchussets having their satanicsacrament recognized there?

  33. eric says

    @22:

    @eric
    The administration is still enforcing DOMA. They are no longer defending it in court. Big difference

    Not really. If the administration still enforced drug laws but no longer prosecuted them in court, would that make for a better analogy? I can’t see much of a substantive difference between doing that and non-enforcement. Our legal system is designed to be antagonistic: if the goverment doesn’t mount a prosecutorial argument, they are effectively not enforcing a law, because the defense will win by default. No arrest will hold up unless the administration defends it in court.

    Oh, I guess there could be some middle ground, where police stop pot-smoking motorists and ticket them but the ticket never holds up in court. That could be an example of “enforcing but no longer defending it in court.” But I wouldn’t call that a big difference over nonenforcement.

  34. Doug Little says

    I wonder if the savings by not arresting, prosecuting and incarcerating pot smokers could potentially match any kind of grant pulling the Feds would care to impose. I would like to see the Feds just reschedule it, surely there are enough votes on both sides of the isle to be able to pass a bill doing so.

  35. says

    “Not really. If the administration still enforced drug laws but no longer prosecuted them in court, would that make for a better analogy?”

    I’m not sure if we’re even talking about the same thing. “Enforcing” is what law enforcement agencies do. In the case of pot smokers, I seriously doubt that the feds have/are willing to dedicate the resources necessary to nab thousands of pot smokers. They, like any other LEO have to follow the guidelines for an arrest. If I’m sitting in a cafe and some guy sells me a lid of pot, what are the odds that there will be a fed in the vicinity? If I’m driving along, tokin’ a doob, how likely is it that I will be getting pulled over by a Feeb or DEA stooge for that? And, of course, reasonable doubt certainly complicates the situation. If I’m not driving erratically or operating an obviously defective vehicle on what pretext would they pull me over?

    Whatever money the feds do not send back to CO and WA might amount to, the feds would be spending some portion of to bulk up their street level ops. Not a winning strategy, I think.

    For those who, sensibly, think that marijuana should be “rescheduled”. You can count on huge pushback, with the fervor that they usually reserve for teh “snowflakes” bein’ thawed and musloatheists forcin’ teh Shariah on us, from the reiKKKwing.

  36. eric says

    stace @ 34:

    So you’re saying there are countries other than uttterly dysfunctional ones like say, Somalia, whose governments allow their citizens to “inject, inhale, or ingest” anything whatsoever, up to and including dangerous drugs such as heroin and opium? Color me dubious.

    You shouldn’t be dubious; the US was one such country up until the 1930s. Throughout the 19th century and early 20th century, all drugs were legal and opium and heroin were basically sold over the counter at general stores. There’s even a reference to it in Tom Sawyer or Huckleberry Finn (I forget which).

  37. mudpuddles says

    One aspect that I don’t see getting much coverage (any?) when it comes to the drug legalisation issue is the very serious social and environmental damage that the drug trade has in source (producer) countries. For example, people who smoke weed or snort cocaine here in Ireland contribute significantly to criminal financing in developing countries, and to significant ecological damage caused by many of the horticultural practices involved, some of which in turn have negative impacts on public health; not to mention the human rights abuses when indigenous lands are involved. A properly regulated drug trade, perhaps one where individuals could be licenced or allowed to produce for their own use or limited / controlled sale within the US (or wherever), could help to address these concerns in a very practical and effective manner.

    Targetting end users regardless of state laws can perhaps be justified – albeit from a pretty narrow perspective – if one takes the view that the federal law is the federal law and must be upheld, but I would have thought that a smart guy like President Obama might by now have decided that such an expensive and fruitless drugs policy as the one currently in place should be radically overhauled, and integrated with other elements of foreign policy including support for indgenous rights and environmental initiatives. But I know, that’s not how politics works. Smart means little to nothing.

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