What Happens Next?

We noted this morning that marijuana is now legal in Washington State. (!) But what happens next?

As WA press noted, federal authorities had no plans to intervene at this time -- the expected celebrations proceeded unmolested, at least we've not heard of any problems.

Seattle skyline
Of course that's not what the feds would do. As we've noted here, most law enforcement is state and county and local -- federal arrests for marijuana possession are a rarity, and mostly occur in places like national parks that are specifically federally controlled. Thinkers within and without our movement have been speculating what the federal response might be and what options they will legally have at their disposal once the courts weigh in.

As one of our advisors, Eric Sterling, commented in our newsletter after the election, officials at the Dept. of Justice were taken by surprise, perhaps by the passage of the initiatives and certainly by the strong margins of victory. A New York Times story today by Jack Healy noted that the Obama administration has yet to announce any policy on the matter, but have simply noted that federal law remains unchanged. According to the article, officials asked about it referred to a statement released yesterday by the US Attorney in Seattle, Jenny Durkan:

"In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance," [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."
 

Which tells us nothing we didn't know. But Durkan did say that the administration is reviewing the initiatives. And according to Healy's article, "several people familiar with the [administration's] deliberations" say they are considering legal action. There are a few legal issues at stake:

  • Can the government "preempt" the states' regulatory systems -- that is, not just raid marijuana stores if they choose to, but prevent the state from exempting any growers or distributors or sellers under state law?
  • If they can, will that endanger the rest of the laws? The argument for that, Healy posits, would be that voters mightn't have passed the laws without the regulations.
  • Do the state laws run afoul of our government's treaty obligations, particularly the 1961 Single Convention on Drugs?

Many scholars are skeptical that a preemption challenge would succeed. Gregory Katsas, a DOJ official in the George W. Bush administration, pointed out to the Times that there is nothing in the laws that prevent the federal government from bringing marijuana cases in the states. The argument there is that the laws are not in "positive conflict" with the federal Controlled Substances Act (CSA), despite their clear "tension" with it. Several legal scholars submitted a brief in a California case on this subject earlier this year taking that viewpoint.

My takeaway from the brief was that the feds might not be able to preempt even the regulatory portions of the laws, and would probably have to amend the CSA to have a chance. The very same law that would be invoked in a court case, is the same one at work in prohibition of medical marijuana. And in 16 years of state medical marijuana laws, including now 10 dispensary states, no federal prosecutor has sought to invalidate any of these laws in court. That suggests they are not confident of what their prospects would be.

Regarding the treaties, my guess would be that the same reasons federal law might not preempt state marijuana legalization applies to the treaties too -- marijuana is still federally illegal. The treaties do seem to frown even legalized possession. But they explicitly allow for alternatives to criminalizing possession, such as health and education-based approaches -- which we don't have as much of as we should, but which we do have. So it's not clear that the treaties will be a problem either.

All that said, we do not know what will happen, and Congress's power to regulate commerce is broad -- the pressure on the feds to do something is greater, and the set of arguments they can bring to court are more numerous.

I am excited but also anxious about what may happen next. Are Amendment 64 and I-502 going to federal court? What will the courts say? Will the feds try to scare Washington and Colorado officials from implementing regulations -- will the states' governors stand up to them if they do, or will they seek delays as happened in a number of medical marijuana states? Will the federal raids being made against medical marijuana facilities be expanded when legalized marijuana stories eventually open? Such a strategy would be more effective in Washington, less so in Colorado where there will be more stores and where home growing is legal. But they can probably take down anyone in Colorado as they choose. Will there be threats to withhold highway funds over the laws, or law enforcement funds?

Hopefully the Obama administration will finally choose to be on the right side of history on this issue. But we'll ses. What happens next? For now we wait -- I am nervous but also excited.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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one thing is for sure...

marijuana offenders are the prison companies´ bread & butter.. and their not going to back down that easily.. and they have $1 trillion in bribes to change whatever laws they have to in order to gain more "customers"...

A slight correction

I would change the "bread and butter" analogy to "marijuana offenders are the prison companies' 'third slice of chocolate cake'"

Can the government "preempt"

Can the government "preempt" the states' regulatory systems -- that is, not just raid marijuana stores if they choose to, but prevent the state from exempting any growers or distributors or sellers under state law?

Constitutionally, no - but that hasn't stopped the Federal government in the past 150 years.

Do the state laws run afoul of our government's treaty obligations, particularly the 1961 Single Convention on Drugs?

(1) The Federal government cannot constitutionally grant itself additional powers via international treaties, although, again, that hasn't stopped them from claiming otherwise for many decades.  Only treaties that conform to the Constitution should be considered legitimate, and most of the ones made in these days do not, since they require the Congress to assume powers that have not been delegated to it by the States.

(2) Treaties are transitory things; history is littered with hundreds or thousands of broken and disregarded treaties.  They are only good for as long as all parties continue to abide by them.  (Kind of like how the Constitution hasn't really done much to restrain the Federal government over the last 150 years.)

Are Amendment 64 and I-502 going to federal court? What will the courts say?

The Feds will undoubted take this to court - their courts.  And of course, their courts are ultimately going to rule for them and against the people.

The United States aren't really a democracy, regardless of what the politicians claim all the time; the "will of the people" only counts when it coincides with what those who consider themselves our masters want.  Neither are we a confederated republic, as the original Founders intended.  Our "representatives" in Rome-on-the-Potomac only represent those who help them stay in power, and most of them barely restrain their contempt for "the people."

The real question is, how much longer are we going to accept or tolerate this?  The only way we are ever going to end this abominable "war on drugs" is to end it ourselves.  My hat is off to the people of Colorado and Washington for taking the first step, and I truly hope that many more States will follow their lead - and soon.

And yet

And yet the totalitarian-like actions and policies you allude to date back to decades past, when all the people had to go on was the propaganda directed at them.  We are far more difficult to "control" and "subjugate" (I don't really believe that is what the govt is all about, I'm simply playing devil's advocate here) when we have free access to information at our fingertips.  Propaganda falters when the truth is readily available, and "Liked" and "Tweeted" and "Blogged" and whatnot, across our society.

Something that more than half the people want cannot be kept out of their hands for much longer... in order to keep people in line you simply HAVE to keep them happy, or risk losing your authority over them.

I consider myself a patriot, and I don't believe in all of the "doom and gloom" conspiracy-like ideas about our government, but even if you do believe them to be true, we are not seeing any kind of control on information out there. It would require media control to keep popular opinion from shifting, but right now media control is in our hands, the Average Joes of society.  

To maintain their control and keep people in line, they'll simply have to give us legalized marijuana, eventually.  It's just far too popular, and far too many "role model" figures endorse legalizing it.  There are some big names supporting this, and even our President disclosed a youth spent recreationally using the stuff.

The other important thing to point out about the polls is that the majority of the opposition was in the older age brackets.  Well... they aren't getting any younger.  As they are eventually replaced with the next generation of voters, those numbers could take a drastic turn... possibly breaking 60%, (or 70%?) within the next decade or so.  So, honestly, it's only a matter of time.

And I'm sure, on the business front, behind closed doors, many businesses who may make the majority of their revenue on marijuana prohibition related operations may be conducting contingency planning even as we speak.  At least... they better be.

You're right, we are a Republic.

That's a good thing. We're not a democracy. We have states and we have a federal government. While not as loose as a Confederation, we're still free to have a Federal government which is limited to the constitution in it's powers. Everyone thinks the CSA is for the Federal government, but it's for the States. Why do all the people seem to think the CSA should override the States power when it only confirms it?

We're indeed lucky we're not a democracy, because we'd be living under one federal rule and Lincoln would have made us Facist well before our time.

Ask the Indians

Just ask the American Indians about broken treaties; our Government had no problem breaking them!

Are We to Have Laws for People?

Or are we to have people for laws? 

The idea that the citizens cannot enact social policies to correct the abuses of government goes against the very grain of what America is all about.  The people seeking to free the weed aren’t trying to enslave citizens, to take away people’s rights.  They’re trying to expand human rights and freedom.  If the drug law reform movement sought to bring harm to people as the government does with the CSA and Single Treaty, it couldn’t exist as a popular movement. 

Prior to the Civil War, there were states that voted against slavery, and there were those in the non-industrialized South that embraced and championed human servitude, much like the situation existing now among states rejecting, or accepting medical, and legalized, regulated marijuana.  Interestingly enough, the slave states are still the ones most likely to favor prohibition. 

Abraham Lincoln experienced problems ending slavery that were similar to those that modern drug reform activists face.  For instance, Lincoln approached the Pope in Rome to get him to renounce slavery throughout the world; but Pius IX, evil bastard that he was, flatly refused.  And as a sovereign national entity, and a signatory of the Single Treaty, the Vatican still takes the side of the prohibitionists.  Some things, like immoral leadership, never change.

We can’t expect the oppressors to show any guts when it comes to remedying the damage they’ve caused.  Hanging onto power and wealth is their first priority.  The power of the President to uphold the law is betrayed by bad law, and in such a case, it becomes Barack Obama’s duty to seek a moral and legitimized solution to overcoming that which bleeds to anemia the spirit and loyalty of American citizens.

We asked our President in an

We asked our President in an open forum and he laughed us off and now even though it is always the top subject in every public forum he ignores them. We petitioned the government with the most supported petitions at they're site and all we got was the standard propaganda of bought science and skewed statistics from the federal bureaucracy that is required by law to keep marijuana from being legalized. We have contacted our legislators until all have pre-written responses for answers but no action.

Now we have legalized marijuana by a vote of the people and still our government refuses to even debate the subject.

Didn't we once revolt over a government that ignored it's people?

The thing people are missing

The thing people are missing regarding the International Treaty issue is that we have globalist president in office.  If Obama goes to the UN for his war powers, instead of Congress, he will most likely take his cues from that Yans retard in charge of the INCB for his drug war.  This problem is that Fed=world government and Obama is doing all he can to make the UN our governing body instead of the Constitution.

Americans are going to have to fight back against the Feds and their one world government agenda if their is to be any marijuana peace.  We need pro-marijuana lawyers to reek havoc on the federal government.  We need people charged will marijuana offenses to go all the way instead of plea bargaining.  We need to find lawyers willing to take a jury nullification stance in a marijuana trial.  This has to be the norm.  We need to make a mockery of the federal government and their oppression against a majority of citizens.  We need more stories exposing Federal drug warmongers to get the general public against the Fed, not just marijuana consumers.  The Fed needs to be put in jail.

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