Feds Unsure What to Do About State Legalization
A Washington Post story by Sari Horwitz reports that federal officials don't know what they are going to do about marijuana legalization in Colorado and Washington:
"I really don't know what we're going to do," said one high-ranking law enforcement official involved in the decision who was not authorized to speak publicly.
"It was a battleground state," said [another] administration official, who spoke on the condition of anonymity because he was not authorized to talk publicly
.
Horwitz's otherwise good article repeated the same fallacy we have seen crop up in other news reports of late, the idea that states can't do this because of federal law, a fallacy that I predicted here and have already noted here. The article states:
The most likely outcome will be that the Justice Department will prevent the laws from going into effect by announcing that federal law preempts the state initiatives, which would make marijuana legal for recreational use, law enforcement sources said.
Perhaps it's just a typo, and I don't know what the sources told Mr. Horwitz, but no matter what the legal and practical outcome of all of this, it is not the case that DOJ can preempt a state's law by making an announcement about. They can ask a court to preempt the laws, and then the court will decide. Significant legal precedent indicates that Congress cannot force states to criminalize conduct they don't want to criminalize, anymore more than states can force Congress to lift such criminalization -- as I've pointed out, in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to do so. Maybe they'll try now, and if so we'll see what the Supreme Court's inconsistent conservatives say and what the liberals say. But they've had plenty of incentive to go that route already, and for some reason haven't.
Not that the feds can't make a fight of things. As the medical marijuana battles show, they have ways to interfere. They can send vaguely threatening letters, implying without directly stating that state employees would be violating federal law by implementing regulations for marijuana, as US Attorneys in most medical marijuana jurisdictions have done. That could scare the governors, who could seek delays implementing the initiatives, which in turn would have to be addressed in court. The IRS could move against the new businesses, auditing and penalizing them under a tax rule that disallows most expense deductions for illegal enterprises. (The law bizarrely allows dispensaries to deduct the cost of marijuana itself, but not other things like payroll or rent.) They can make it hard for marijuana businesses to maintain relationships with banks. And of course they can raid any marijuana store that they choose to.
But none of that is the same as preempting the laws themselves. And none of it would stop people from possession marijuana whenever they want, legally under the states' laws, or in Colorado from growing it. This needs to be repeated as often as possible: Colorado and Washington's marijuana laws are different from federal marijuana law, but that doesn't mean they conflict with it; and not every conflict is legally impermissible. If federal law just preempted state law in that way, 18 states would not have medical marijuana today.
Looks promising
I still believe the feds will try to oppose the will of the voters in Colorado and Washington, but the fact that they seem to be very carefully measuring their response is encouraging. "I really don't know what we're going to do" is encouraging, because it means they aren't being so fast to rush into a knee-jerk reaction. Holder not speaking up also complicates things... "it was a battle ground state" so he was willing to set his own values aside just for the sake of securing stoner votes for his boss? THAT won't hurt the administration's image or anything ;) Or can they spin this into a "well, it is indeed time for a change" thing. Either way, win/win imo.
I think we are all looking forward to Obama just speaking up at this point.. come on Mr. President, you are our leader, so step up and break your annoying silence about Marijuana. Yes, it exists, and yes has become a subject of debate. Yes, people care about this issue, so he needs to go on record and make a statement for the American people one way or the other.
Of course they don't know
Of course they don't know what to do lol, having to follow the law is a completely new thing for the DEA and the feds.
Good article!
Good article!
Is there really confusion on this point?
I'm not aware of anyone arguing that because federal law still prohibits marijuana, Colorado can't change its own laws. I perceive most people as being rather comfortable with the idea that federal law might say one thing while state law might say another.* Is there legitimate widespread confusion about this?
Rather, it is my understanding that journalists are invoking the "conflicting" laws to point out that just because state police can no longer enforce prohibition, federal agents can. If the ONDCP, DEA, and DOJ (along with President Obama, presumably) decide that they are interested in cracking down on Colorado's cannabis industry, they certainly could do so. In that case, it would not be a defense to prosecution to argue in federal court that your actions were sanctioned by state law; federal law is supreme. And if you're a dispensary-owner, you probably don't care too much whether you end up in state or federal prison.
Briefly, for the sake of clarity: no powers inhere in the federal government except for those that are specifically granted to it by the Constitution. If, however, the federal government is acting within its enumerated powers, it's law will be enforceable regardless of the State's position and laws. That does not mean, though, that states will be tasked with enforcing federal law. It is unconstitutional for the feds to "commandeer" state law enforcement for the enforcement of federal law. (This does not seem to apply in cases of so-called "deputization" of local and state law enforcement, though my understanding of that area of the law is limited.) Because A64 Constitutionally protects the right to possession, no state agent can interfere with that right -- at least not under the authority of state law. Again, local law enforcement can, in some circumstances, be deputized, but generally, they are charged with -- and limited to -- enforcement of state law.
*There are a couple of theories on which I think the Federal Government could have A64 judicially overturned (much like Colorado's 1992 Constitutional Amendment was invalidated). I will have to do some more research, but I will try to do so in the next couple of days.
By way of speculation, though, I wonder if, given the current composition of the Supreme Court, it might now be inclined to limit the scope of Federal law in this case--particularly after the PPACA litigation last spring. For example, you have to believe you'd still have Thomas's vote (in pretty much any case). And given the right factual circumstances, I bet you could pull in some of the lefties. Scalia's Raich opinion kind of bit him in the butt in PPACA, even if you do draw a distinction between "activity" and "non-activity." (It wouldn't be hard to find a person in Colorado who has cannabis growing on his property without his contributing to the cultivation, would that qualify for "non-activity," for example?) And, the Raich court never actually addressed simple <em>possession.</em> I believe it was stipulated that the users in those cases had actually grown they're own cannabis, thus subjecting them to the Wickard analysis (which still makes almost no sense to me -- or J. Thomas -- again, unless it's the activity/non-activity distinction). If Rehnquist's "substantial effects" doctrine still guides any of the Justices (and it probably does, though with Alito, Roberts, Kagan, & Sotomayor, anything could happen), it seems like it might be possible to get a factual case together where there isn't really a reasonable basis for finding substantial effects on inter-state commerce -- yet again, tracking the activity/non-activity distinction (which, I should point out, some people think is meaningless). Although Raich appeared to reach even simple possession, I think the Court would find it very difficult to justify prohibition of mere possession under the Interstate Commerce Clause, even in light of the Necessary and Proper Clause.
And, I haven't even looked at the language in the CSA itself that ostensibly provides some latitude to states to come up with their own regimes...
Is there really confusion on this point?
I'm not aware of anyone arguing that because federal law still prohibits marijuana, Colorado can't change its own laws. I perceive most people as being rather comfortable with the idea that federal law might say one thing while state law might say another.* Is there legitimate widespread confusion about this?
Rather, it is my understanding that journalists are invoking the "conflicting" laws to point out that just because state police can no longer enforce prohibition, federal agents can. If the ONDCP, DEA, and DOJ (along with President Obama, presumably) decide that they are interested in cracking down on Colorado's cannabis industry, they certainly could do so. In that case, it would not be a defense to prosecution to argue in federal court that your actions were sanctioned by state law; federal law is supreme. And if you're a dispensary-owner, you probably don't care too much whether you end up in state or federal prison.
Briefly, for the sake of clarity: no powers inhere in the federal government except for those that are specifically granted to it by the Constitution. If, however, the federal government is acting within its enumerated powers, it's law will be enforceable regardless of the State's position and laws. That does not mean, though, that states will be tasked with enforcing federal law. It is unconstitutional for the feds to "commandeer" state law enforcement for the enforcement of federal law. (This does not seem to apply in cases of so-called "deputization" of local and state law enforcement, though my understanding of that area of the law is limited.) Because A64 Constitutionally protects the right to possession, no state agent can interfere with that right -- at least not under the authority of state law. Again, local law enforcement can, in some circumstances, be deputized, but generally, they are charged with -- and limited to -- enforcement of state law.
*There are a couple of theories on which I think the Federal Government could have A64 judicially overturned (much like Colorado's 1992 Constitutional Amendment was invalidated). I will have to do some more research, but I will try to do so in the next couple of days.
By way of speculation, though, I wonder if, given the current composition of the Supreme Court, it might now be inclined to limit the scope of Federal law in this case--particularly after the PPACA litigation last spring. For example, you have to believe you'd still have Thomas's vote (in pretty much any case). And given the right factual circumstances, I bet you could pull in some of the lefties. Scalia's Raich opinion kind of bit him in the butt in PPACA, even if you do draw a distinction between "activity" and "non-activity." (It wouldn't be hard to find a person in Colorado who has cannabis growing on his property without his contributing to the cultivation, would that qualify for "non-activity," for example?) And, the Raich court never actually addressed simple <em>possession.</em> I believe it was stipulated that the users in those cases had actually grown they're own cannabis, thus subjecting them to the Wickard analysis (which still makes almost no sense to me -- or J. Thomas -- again, unless it's the activity/non-activity distinction). If Rehnquist's "substantial effects" doctrine still guides any of the Justices (and it probably does, though with Alito, Roberts, Kagan, & Sotomayor, anything could happen), it seems like it might be possible to get a factual case together where there isn't really a reasonable basis for finding substantial effects on inter-state commerce -- yet again, tracking the activity/non-activity distinction (which, I should point out, some people think is meaningless). Although Raich appeared to reach even simple possession, I think the Court would find it very difficult to justify prohibition of mere possession under the Interstate Commerce Clause, even in light of the Necessary and Proper Clause.
And, I haven't even looked at the language in the CSA itself that ostensibly provides some latitude to states to come up with their own regimes...
ENTITLEMENT?
Trillion dollar entitlement tax-fraud!
Public NOTICE of interest
November 21, 2012 Duane R. Olson
Almost no one, least of all, the ‘movers and shakers’ in Washington, think about and treat America’s Luciferian and Moralistic “WAR on DRUGS” as an entitlement, but after 42 years of defeat and destined to continue forever, that’s exactly what the federal drug WAR against the people’s ‘rights’ has become.
What else would you call the fed’s ‘failed’ drug policy of 42 years that has pledged to squander $15 billion federal tax-dollars and another $22 billion state tax-dollars yearly for a total of $37 billion in tax-dollars the forever but an entitlement?
Moreover, while the entitlements of Medicare, Medicaid, and Social Security provide aid for families who qualify, DRUG SENSE MAP Inc. reports that;
Arrests for drug law violations this year are expected to exceed the 1,663,582 arrests of 2009. Law enforcement made more arrests for drug abuse violations (an estimated 1.6 million arrests, or 13.0 percent of the total number of arrests) than for any other offense in 2009.
Someone is arrested for violating a drug law every 19 seconds.
And;
Police arrested an estimated 858,408 persons for cannabis violations in 2009. Of those charged with cannabis violations, approximately 89 percent were charged with possession only. An American is arrested for violating cannabis laws every 30 seconds.
And;
Since December 31, 1995, the U.S. prison population has grown an average of 43,266 inmates per year. About 25 per cent are sentenced for drug law violations.
Source: Uniform Crime Reports, Federal Bureau of Investigation
CRIMINAL INDICTMENT
I, DUANE R. OLSON,being a natural born citizen on December 07, 1928, in the City of Elmira, County of Chemung, State of New York, United States of America, do hereby allege and charge;
That the people’s Public Servants in the legislative, executive, and judicial branches of the government of the United States have conspired, combined, and had tacit agreement;
01) To appropriate and spend over one trillion tax-dollars ($1,000,000,000,000.00) since October 27, 1970, on the infamous entitlement of America’s “WAR on DRUGS”;
02) Under the constructive implication® and assumption that the isolated and truncated phrase, “[u]nlawful for any person” in Title 21, United States Code, Section 841(a); “By its own terms – reaches any person”[1] and;
03) Under the conclusion of law and presumption that; Title 21, United States Code, Section 841; “[w]as reserved for prosecution of those outside the legitimate distribution chain [and] the severe penalties provided for in §841(b) [are] for those seeking to avoid regulation entirely by not registering”[2] and further;
04) These assumptions and presumptions enforced by the executive and judicial branch of the government of the United States respectively, have resulted in;
05) The arrest and prosecution of hundreds of thousands of men and women (with dead-bodies on both sides) from nearly every nation on this planet and the conviction and punishment of a combined hundreds of thousands of years in American gulags disguised as federal prisons;
06) Under color of the most repugnant FRAUD ever perpetrated and conducted by a government against its own people in the History of the World because;
07) Any person at randomor targeted by the DEA who is NOT registered by the Attorney General of the United States for federal jurisdiction to be federally regulated in the closed commercial system of controlled substances;
08) Is STATUTORILY EXEMPT by the Ninety-First Congress in the bifurcated and cryptic statutes of Title 21, United States Code, Section(s) 841(b), 841(a), 822(b), and 821, from the ambit of federal jurisdictional authority to arrest, prosecute, convict, and punish “any person” at random for conduct; “[i]n violation of Title 21, United States Code, Section 841(a)(1)”, because;
09) Federal jurisdictional authority for the executive and judicial branch of the government of the United States to enforce America’s “WAR on DRUGS”, Title 21, United States Code, Section 841;
10) COMES NOTfrom any language in Our Constitution for self-government by “WE, the people” nor, from any language in the controlling statute, §841[3], but rather;
11) Federal jurisdictional authority to; arrest, prosecute, convict, and punish, any person whose conduct is alleged, admitted, or found, to be; “[i]n violation of Title 21, United States Code, Section 841(a)(1)” comes from;
12) A real and binding contractual agreement where money changed hands between the registrant and the attorney general creating privileges, obligations, and liabilities, for federal jurisdiction to be federally regulated to possess, manufacture, distribute, and dispense, controlled substances.
13) To be precise; NO REGISTRATION * * * NO CONTRACT * * * NO CONTRACT * * * NO FEDERAL JURISDICTION * * * IT’S JUST THAT SIMPLE!
14) A violation of Title 21, United States Code, Section 841(a)(1) is not a federal crime punishable by forfeiture of cash and real assets and medieval federal prison sentences, but rather;
15) A violation of Title 21, United States Code, Section 841(a)(1) is a material breach of contract and a Civil Matter of Equity, plain and simple!
16) Whether the PENALTIES prescribed by the Ninety-First Congress in Title 21, United States Code, Section 841(b) for any injury to the attorney general of the United States are legal and constitutional pursuant to the People’s rights preserved in Article Eight of the Original Ten Articles of Amendment to Our Constitution need not be addressed in this criminal indictment.
Author’s note to; “WE, the people”
I, DUANE R. OLSON, am ready, willing, and most anxious, to prosecute those elected and appointed officials responsible for the most repugnant FRAUD ever perpetrated and conducted by a government against its Own People in the History of the World . . .
ARE YOU?
PETITION
[1] U.S. v. Moore: 423 U.S. 122 (Dec. 09, 1979)
[2] U.S. v. Moore:
[3] Interstate commerce and foreign trade as a NEXUS to the Constitution for federal jurisdictional authority are never mentioned in the language of the OFFENSES and PENALTIES statute, §841
Is there really confusion on this point?
I'm not aware of anyone arguing that because federal law still prohibits marijuana, Colorado can't change its own laws. I perceive most people as being rather comfortable with the idea that federal law might say one thing while state law might say another. Is there legitimate widespread confusion about this?
Rather, it is my understanding that journalists are invoking the "conflicting" laws to point out that just because state police can no longer enforce prohibition, federal agents can. If the ONDCP, DEA, and DOJ (along with President Obama, presumably) decide that they are interested in cracking down on Colorado's cannabis industry, they certainly could do so. In that case, it would not be a defense to prosecution to argue in federal court that your actions were sanctioned by state law; federal law is supreme. And if you're a dispensary-owner, you probably don't care too much whether you end up in state or federal prison.
Briefly, for the sake of clarity: no powers inhere in the federal government except for those that are specifically granted to it by the Constitution. If, however, the federal government is acting within its enumerated powers, it's law will be enforceable regardless of the State's position and laws. That does not mean, though, that states will be tasked with enforcing federal law. It is unconstitutional for the feds to "commandeer" state law enforcement for the enforcement of federal law. (This does not seem to apply in cases of so-called "deputization" of local and state law enforcement, though my understanding of that area of the law is limited.) Because A64 Constitutionally protects the right to possession, no state agent can interfere with that right -- at least not under the authority of state law. Again, local law enforcement can, in some circumstances, be deputized, but generally, they are charged with -- and limited to -- enforcement of state law.
I had more in the form of legal speculation/analysis of ISC, but perhaps it is too long...
Your reasoning is equally
Your reasoning is equally applicable to international law.
If US states can legalize marijuana without sanction from either the federal government or UN drug charters, then any nation can. Would the UN implement sanctions against the US? Of course not. It might take a little while for the rest of the world to wake up to this but basically prohibition is dead. War is Over!I agree with David Borden
I agree that federal law doesn't prevent states from allowing non-medical use of marijuana. I predict the federal government will do nothing about personal use and possession within state limits. We have a drug tax stamp law here in Iowa for the past couple of decades and it imposes a tax on marijuana even with both state and federal law making it illegal to use or possess. So I predict the federal government will do nothing about states taxing marijuana. Of course, there are lots of ways a state could get more involved in the production and distribution of marijuana, and I do think the federal government would step in and make some kind of a fuss about that. But, we are seeing a newborn baby here that hasn't learned to walk yet. That baby is going to grow up to be strong and powerful, so governments had better pay a little respect. God bless you all!
Paper Covers Rock?
Everybody always says, "Federal law supersedes state law". I tell them, "Yeah right, that's like saying paper covers rock. Everyone knows if you throw a rock hard enough it'll tear right through paper!"
I hope Pennsylvania adopts change similar to Colorado and Washington. I'm going to do whatever I can to help the process along.
Peace
There's only one clear choice
From what I gather, the Federal government can certainly stop the states from setting up their distribution network, but they cannot force the states to arrest marijuana users, sellers, and growers--the feds would have to come and do that themselves.
This leaves, in my eyes, only one clear choice... the federal goverment must respect the will of the colorado/washington voters. What are they going to do? Stop the states from setting up legal dispensaries? Then they'll be sending tons of money directly to criminal networks... it'd be like Obama would be directly supporting terrorism. They simply have to let the state governments in Washington and Colordao set up shop, so that people in these states can buy from American grown marijuana in a LEGAL market and keep the money OUT of the hands of criminals and terrorists. It's the only clear, logical answer here.
They must know this, this is why they're "unsure how to proceed" and taking so long to release an official statement. They can do far more harm than good by trying to step in the way of progress at this point.
Feds Must Wait
Even if the feds wanted to challenge these laws in court, they can't do it yet. It's the same problem the governor of AZ had when she tried to stop the state law from going into effect. You can't file a suit over something that is going to happen in the future. Someone has to have been "harmed" in order to take it to court. Until these laws go into effect and people start blatantly violating the Controlled Substances Act, no harm has been done.
However, the feds have never filed suit to stop a state medical law, so I doubt they'll do it this time. Too uncertain, too likely for them to lose. If anything, the feds will probably continue their "cartel-style" enforcement. In other words, send in the armed gunman and let them do some terrorizing.
Feds just Team up with local enforcement
The local drug tasks forces just do joint operations with a federal agency such as DEA, then the Feds take over the prosecution, so there is no medical defense.
How can they do this and not allow someone to defend themselves? Is there any way around this injustice?
I heard one Washington politician had a bill called Truth in Trials, does anyone know about it?
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