Good News

I’m not saying an interview on Barbara Walters means a whole lot here, but Obama saying he would not go after Washington and Colorado for legalizing marijuana is a good sign. Does this mean he will call off the DEA in those states? Will he allow the states to set up stores? All the details need to be worked out, but it’s at least useful that Obama is talking in these terms.

56 comments on this post.
  1. Scott Lemieux:

    Obama says — quote — “It does not make sense from a prioritization point of view” to focus on drug use in states where it is now legal.

    Again, the proof of the pudding etc., but that’s the appropriate response.

  2. Random:

    Just wondering, is there any foreseeable endgame that ends up not substantially legitimizing pot even further? Is there a substantial number of people out there somewhere who think that we won’t? It’s beginning to seem almost inevitable now.

  3. Erik Loomis:

    That’s certainly where I lean. Nothing is inevitable. But I hardly see a social movement developing against it, which is what happened in the late 70s when things looked like they might turn toward legalization.

  4. Turbulence:

    Err, I’m not sure. As Yglesias points out, Obama said they wouldn’t go after recreational users. But they couldn’t do that anyway since they don’t have the resources. What they can do is go after cultivation farms, stores, and local/state government officials who issue licenses. That’s easy to do.

  5. mark f:

    Saw a different quote earlier where he said it doesn’t make sense to pursue “recreational users” (which was obviously true for federal law enforcement before election day and should be the case in all 50 states now). But I hope he was merely speaking imprecisely and not intentionally leaving an out to go after dispensaries or small-sized growers and the like.

    Also, Police, Adjective is a good movie about marijuana enforcement.

  6. Erik Loomis:

    I just watched Police, Adjective last week.

    Tell you this–the film centers Romanian grammar more than any film I’ve ever seen.

  7. cpinva:

    this isn’t what will stop it in its tracks:

    But I hardly see a social movement developing against it, which is what happened in the late 70s when things looked like they might turn toward legalization.

    the drug war industry will. too many people, making too much (taxpayer funded) money, to allow this sort of nonsense to continue. billions of dollars, and 1,000′s of jobs at stake, from the DoJ/DEA, down to the local yokels, to allow pot to become legal, at the federal level.

    as we saw during the campaigns in those states, the drug war industry will lie through its teeth (same people running their anti-campaigns as running the republican campaigns), to keep pot illegal. science/public health/safety isn’t the issue (and never was), it’s all about the cash. i wouldn’t be at all surprised to learn that the cartels donated funds to the opposition, because they clearly have lots of money at stake as well.

  8. njorl:

    Even if the DEA makes no intentional efforts against pot in any step of the supply chain, there are other drugs. If federal agents are building a case against meth distributors, and wind up accumulating evidence against pot dealers who are dealing in substantial quantities, they’ll probably prosecute.

  9. Semanticleo:

    “We’ve got bigger fish to fry,” Obama said. “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal.”

    http://washingtonexaminer.com/obama-to-marijuana-users-weve-got-bigger-fish-to-fry/article/2515954#.UMtKVY7TLFJ

    Uh….he hasn’t been going after users in California either, just trying to dry up the sources, which is an indirect attack against Medical Marijuana patients. So, recreational users, fall into that self-same category (you know, voters)

    But, rest assured, the Bigger Fish are still in his sights.

  10. Erik Loomis:

    No, not with people voting to legalize it. Money matters, but the votes of people matter more.

  11. Left_Wing_Fox:

    On the plus side, pot is much less stigmatized in the media, and isn’t the face of a generational culture war like it was in the 60′s and 70′s, so I don’t think we’re likely to see a major setback like we did with Dr. Peter Bourne resigning amid accusations of prescription abuse and cocaine use.

    On the downside, there’s still a lot of opposition, and so little inertia in the US that even “inevitable” cultural shifts happen pretty glacially (i.e. gay rights and healthcare reform).

  12. David Nieporent:

    Fool him once, shame on you. Fool him twice, he must be Loomis. Obama said exactly the same thing in 2008 about medical marijuana, and he promptly reneged on that version of this “promise.”

    I put “promise” in quotes because it isn’t actually a promise at all; it’s just a vague observation. “Does not make sense from a prioritization point of view” does not mean “won’t do it.” Moreover, even if he doesn’t personally want to do it, so what? While the buck may stop on the president’s desk, he has only a limited role in day to day law enforcement; USAs and the DEA do what they want. Other than his pardon power, which he’s too cowardly to use, there’s little he can do. What’s he going to do, personally order a USA not to prosecute someone arrested by the DEA?

    Moreover, even if it’s actually a commitment, it’s meaningless because the federal government has never “prioritized” marijuana use. The feds go after dealers (or users that the government can pretend are dealers because there’s a legal presumption that mere possession of a sufficient quantity is evidence of intent to sell). They only prosecute “use” incidental to other offenses, and that’s what they’ll continue to do.

  13. Erik Loomis:

    What did you put on your pancakes this morning?

  14. rea:

    There’s a couple of versions of what the feds are doing in California. They claim, at least, that they only go after growers and distributors who are conducting large scale operations that don’t comply with California law.

  15. Random:

    Wouldn’t it be abusive of the pardon power to use it to systematically pardon an entire category of criminals, thus bypassing Congress’s law-making ability?

  16. Semanticleo:

    Uh, uh……..

    LOS ANGELES — Federal prosecutors looking to take out California’s medical marijuana shops have now set their sights on Los Angeles, where city officials have struggled to stop a blooming of dispensaries.

    The U.S. attorney’s office sued three property owners that house pot collectives and sent warning letters to 68 others as they enforce a federal law that doesn’t recognize a California initiative that legalized pot for medicinal use.

    The move Tuesday came nearly a year after federal authorities began targeting the state’s pot shops. The city’s own ban on dispensaries also is being challenged and could be overturned by voters if a referendum is placed on an upcoming ballot.

    “As today’s operations make clear, the sale and distribution of marijuana violates federal law, and we intend to enforce the law,” U.S. Attorney Andre Birotte Jr. said.

    http://www.huffingtonpost.com/2012/09/26/medical-marijuana-la-feds_n_1916191.html

  17. Marc:

    Prediction: The Obama-haters using this argument as a club will either move the goalposts or ignore this and move onto the next outrage-of-the-day.

  18. Cols714:

    The 1970s and today are completely different situations. The drug war to me is tied in with the rising of violent crime of the 1970s and 1980s.

    Now violent crime is way down, the culture wars from the 1960s are 50 years old and pot isn’t stigmatized the way it was back then.

    It’s not going to be rapid, but the momentum is all in legalization’s favor.

  19. Sebastian H:

    I’m not buying it. The DEA has always had bigger fish to fry than individual users. Individual users were for local governments. Obama’s statement could easily be read as: we will continue all normal DEA operations in Washington and Colorado just like before. I

  20. Brandon C.:

    I get the feeling that there is more money on the legalization this time around as well. At least a lot more than their was in the 70s.

  21. sharculese:

    Davey your snit against Erik is really weird and gross and says more about you than it does about him, fyi.

  22. mark f:

    What’s in second place?

  23. Joe:

    Well, it’s in the library, so I will check it out.

  24. Joe:

    The big deal here is when the states start to regulate distribution. Will the feds let them do that, in effect aid and abet the distribution of something illegal under federal law? Attempts to set regulations for medicinal marijuana last year or so resulted in threatening letters.

  25. Bill Murray:

    Didn’t President Obama/ AG Holder say something similar about medical marijuana in California? They never really changed enforcement

    Can you rely on what any politician says in a press conference?

  26. Bill Murray:

    when did Barbara Walters interview statements become binding law and lawyers not done things that don’t make sense?

  27. L2P:

    That’s . . . exactly what Rea was saying.

    There are over 1,000 medical marijuana collectives in Los Angeles, and another 200-300 distribution centers. The Feds have targeted less than 100 of them.

    If the Feds wanted to “dry up” medical marijuana in Los Angeles, they would have. They didn’t.

  28. L2P:

    Yes, they DID say that. Except they DID change enforcement. You can drive down Pico or Venice and pass by dozens of storefronts selling marijuana. The Feds ARE NOT PROSECUTING those people. If those people were just selling pot in, say, Miami, out of a 7-11, the Feds would have shut them down. They aren’t in Los Angeles because they aren’t prosecuting medical marijuana collectives except in rare circumstances.

    No, you CAN’T rely on anything a president says at a press conference.

  29. L2P:

    I don’t think so.

    He’s waiting to see how the states end up regulating sales. If it ends up being virtually unregulated, he’s going to step in. If it ends up looking like there’s no need for Federal involvement, he’s going to back away.

  30. joe from Lowell:

    just trying to dry up the sources

    That’s nonsense. The feds’ actions in California don’t even come close to a real push to shut down the industry.

  31. joe from Lowell:

    he promptly reneged on that version of this “promise.”

    Ah, yes, that must be why there isn’t any med pot industry in California anymore.

    eyeroll

  32. L2P:

    Well, currently case law holds that all state regulation is preempted by federal law. The Oregon and Wisconsin (or Michigan? I can’t remember off the top of my head) courts held that years ago, and several of the California appellate courts agreed. The California Supreme Court hasn’t weighed in yet.

    Assuming a state even CAN regulate marijuana sales, the activity will be legal under state law, but illegal under federal law. I don’t know what you mean by “threatening letters,” but the result is that the Feds can shut down any marijuana business under RICO, even though it’s legal under state law.

    Ideally, some Republican states rights activist would address this statutorily, but I’m not holding my breath.

  33. joe from Lowell:

    I’m sure your reaction would have been exactly the same if he’d told Barbara Walters something you didn’t like.

  34. joe from Lowell:

    Obama said exactly the same thing in 2008 about medical marijuana, and he promptly reneged on that version of this “promise.”

    What Obama said in 2008 is that the feds would not prosecute operations that complied with California laws.

    I defy you to provide a single example of that promise being broken.

  35. njorl:

    I don’t know. I used to think it would be decades because politicians were so cowardly. Now I think it might be very quick … because polititians are so cowardly.

  36. Joe:

    Rhode Island’s medical marijuana community took another hit this week — only this time it didn’t result in any healing. Governor Lincoln Chafee announced he was placing a hold on the permits of three compassion centers set to open later this year after he received a letter from US Attorney Peter Neronha warning the dispensaries could be in violation of federal law.

    Read more: http://providence.thephoenix.com/news/120305-obamas-medical-marijuana-crackdown/#ixzz2F3L3XgDs

    On the possible effects of regulations in the two states, cf. Dorf and Lederman here:

    http://www.dorfonlaw.org/2012/11/dont-break-out-cheetos-and-goldfish-at.html

  37. Semanticleo:

    Huh? Remembering off the top of your head, again?

    Because Mayor Antonio Villaraigosa is expected to sign the storefront ban, the total closure of roughly 900 pot shops across LA seems imminent. However, the city council is still discussing Councilman Paul Koretz’s proposal to keep 180 shops open with strict regulations, and NPR points out there doesn’t seem to be any teeth in the new law to deal with pot shops that to refuse to close.

    http://www.huffingtonpost.com/2012/07/26/la-marijuana-dispensaries-open-after-ban-grow-at-home_n_1706718.html

  38. L2P:

    Why would I read that? There’s ACTUAL LAW on this. Maybe you should read it.

    You should probably read Leary v. United States and US Currency, and then shepardize it and read the 20 or so cases that explain what you can and can’t do. There’s Fifth Amendment implications of any regulatory scheme dealing w/ Marijuana, so you’ll need to see what you can do that won’t be unconstitutional under the 5th Amendment.

    Then you’ll probably want to read the Licensing Cases (tough reading, they’re from right after the civil war), and shepard those guys. Then dig into Pack v Long Beach, and the Oregon Dept. of Revenue case, and certainly the other California cases addressing Preemption (make sure you focus on Federal, not State preemption). It’s a tricky area.

    The Feds aren’t doing anything other than pointing out, you know, the ACTUAL LAW here. They aren’t “threatening” anyone. You need to get a grip.

  39. L2P:

    You DO know that Antonio is the Mayor of Los Angeles, not the US Attorney of the Central District of California, right?

    You DO know that the Feds are not closing ANY of those collectives, right?

    You DO know the difference between a city (in this case, Los Angeles) closing collectives, and the Feds closing collectives, right?

  40. L2P:

    Also, pro tip. The City never enacted the Ordinance.

    So, yeah. But that’s SO CLOSE to an actual point I’m going to spot you.

  41. Semanticleo:

    Yo DO know they are operating under duress from DOJ, right?

    Go fish, Mr Fisherman.

  42. rea:

    currently case law holds that all state regulation is preempted by federal law.

    Well, that can’t be what you mean, because that would result in no enforceable state laws against drugs.

    I think what you mean is that a state legalizing it doesn’t mean that it isn’t still illegal under federal law.

  43. Pestilence:

    1985

  44. L2P:

    OK, now you’re in tin foil hat land. Here’s what happened.

    1. The City passed on ordinance that the Superior Court held unconstitutional.

    2. The City passed a new ordinance to comply with that ruling.

    3. Collectives challenged THAT ordinance in court.

    4. The Superior Court’s initial ruling was eventually overturned on appeal, making the initial ordinance valid.

    5. Other cases were moving up through the courts putting the City’s entire scheme ( or ANY regulatory scheme) into doubt.

    6. The City has to do something, though, to try to regulate medical marijuana. Among the “somethings” it can do is a “soft ban,” which would decriminalize groups of 3 or less caregivers collectively providing marijuana. This would, however, probably criminalize storefront operations. The City has yet to do ANYTHING on this, though, b/c it doesn’t really know what to do.

    Nowhere in this is the federal government involved. This is purely local and state regulatory matters.

  45. David Nieporent:

    I’m pretty sure the answer to that question depends on one’s view of the law that he’s pardoning people for violating.

    But as an abstract matter, no, why would it be? Congress’s law-making ability is subject to the pardon power. It’s part of checks and balances — and far more legitimate than simply not prosecuting people for violating a law, which is extratextual and often invisible, unlike the pardon power.

    Some states don’t give their governors strong clemency powers, either restricting the governor’s discretion or dividing the power between the governor and a clemency board, but the constitution gives plenary power to the president in that area.

  46. David Nieporent:

    Eh, I’m well aware that my posts about Loomis are not my finest hour. But he’s such an awful human being that I can’t restrain myself all the time.

  47. David Nieporent:

    Joe, I’m well aware that Obama could rape puppies on live national television and you’d claim both that it was a scurrilous lie to say he was raping puppies and that the fact Obama raped puppies made him the greatest president in the history of greatness.

    Just to be clear, Obama’s promise was not limited to “California,” nor was it limited to “prosecuting” people. What he actually said was that “What I’m not going to be doing is using Justice Department resources to try to circumvent state laws on this issue.”

    And what he has done is used Justice Department resources (and the resources of other federal agencies like the IRS, but even you wouldn’t try to make the argument that Obama was only making a promise on behalf of one cabinet department, would you?) to try to circumvent state laws on this issue, from raiding dispensaries to suing to shut them down.

    Here’s a “single example of the promise being broken.” Here’s another. I could really post a thousand links on the topic, or you could just google them yourself. (You used to comment at Reason, didn’t you? So you can find plenty of stories just by going there.)

    I’m sure you’ll have some weasel excuse how those don’t literally break his promise, though. And how each of the other raids or enforcement actions can somehow be squared with the underlying idea that he wouldn’t harass medical marijuana providers. And how he’s actually the bestest president ever.

  48. David Nieporent:

    That’s right. And the mafioso who says, “Nice place you’ve got here. It would be a shame if anything happened to it.” isn’t threatening, either; he’s just making a friendly observation.

  49. Semanticleo:

    Well, you’re satisfied………

  50. L2P:

    Well, I’m speaking broadly. To be more precise, Federal regulation of marijuana fully occupies the field and doesn’t allow any inconsistent state regulation. The ONLY consistent state regulation is to make any use of marijuana illegal.

    But we were talking about state and local “regulation” in the sense of regulating it as a legal activity. (“Regulation” also includes “prohibition,” so I guess you can include criminalization as regulation, but generally that’s not what we mean.) Those regulations are, indeed, preempted.

    The theory the Courts have used is that the any regulation of marijuana activities conflicts with Federal law that makes it illegal under all circumstances. Regulating the activity makes it legal; Federal policy is to prohibit it.

    That makes it very, very difficult for localities to deal with decriminalization. You have to draft ass-backwards ordinances that impose permit requirements and then “waive” criminal penalties when certain the requirements are made. This, hopefully, isn’t “permitting” or “regulating” the activity, but simply “not enforcing local laws,” and so not preempted.

    Like I said, it’s a mess.

  51. L2P:

    Well, with the important difference that ANYONE could sue the states and the dispensery operators to shut down the medical marijuana dispenseries.

    You could. I could. Anyone. If I ran a Plaintiff’s mill, I’d start filing RICO or unfair business practice or waste actions. They are no different than somebody committing wire fraud or selling toxic waste as cheeseburgers in the eyes of Federal law.

  52. L2P:

    Here’s the council file search for the City of Los Angeles. Try to find the City’s ordinance making all the collectives illegal. Knock yourself out.

    http://cityclerk.lacity.org/lacityclerkconnect/

  53. Semanticleo:

    I’ve shown you how you, apparently, pulled those dispensary numbers from your arse, and you carry on, without taking a breath.

    Are you the third leg of an obtuse tirangle?

  54. L2P:

    There are, as of last week, 805 MMCs with a business license in the City. There are over two hundred more that are operating without a license.

    What’s your problem?

  55. Semanticleo:

    What’s your problem?

    Goal-Post operators.

  56. David Nieporent:

    What standing do you think you would have, exactly? It’s true that operating one of these dispensaries violates federal law, but that doesn’t in and of itself create a private right of action.

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