Let It Go

The Obama Administration needs to let Colorado and Washington have their legal marijuana. Just let it go. The Obama Administration has pretty much let the DEA do what it wants around marijuana, largely I think because Obama just doesn’t care and doesn’t want to waste a single minute thinking about this issue. I understand that. But busting legal marijuana is not that dissimilar from the Defense of Marriage Act, at least in terms of the federal government trying to get in the way of historical processes as the social libertarianism of people under the age of 40 comes of age. Even on the level of morality, it’s hard to argue that putting people in prison for small-scale drug offenses is less immoral than denying marriage equality.

Obama just needs to walk away. Treat it like gay marriage and let the states decide what they want. At the very least, it’s an interesting experiment. If it is a disaster, the states can get rid of it. But the same people who support gay marriage support marijuana legalization. The reconstituted McGovern coalition that has pushed Obama to victory wants this. He could crack down now and it probably won’t cause a huge political backlash, even among his supporters. But like DOMA, 15 years down the road, it’s going to make Obama look pretty stupid as legalization becomes an overwhelming movement.

141 comments on this post.
  1. Barry Freed:

    Time to kick him out of the Choom Gang.

  2. howard:

    having concluded, the day in 2008 when obama left the campaign trail to vote to immunize the big telcos for agreeing to be strongarmed by the bush administration into allowing deep data mining of americans phone calls, that obama was a staunch centrist, i am afraid there is every risk that he will do something dumb here.

    and it will not only look stupid in 15 years, it will look stupid today.

  3. howard:

    as a side note, true story:

    when i was an undergrad, a mere 40 years ago, there were many times in a smoke-filled room when i opined that of course marijuana would be legalized because the tax revenue would be irresistible.

    one of the other people in those rooms was john hickenlooper, governor of colorado.

  4. joe from Lowell:

    Obama just needs to walk away. Treat it like gay marriage and let the states decide what they want.

    Remember that the Obama administration continues to enforce the Defense of Marriage Act. It never recognized any spousal benefits or allowed joint filing of tax returns. The administration’s notable action there has not been to refuse to enforce the law as passed by Congress, but to refuse to defend it when challenged in court.

  5. Erik Loomis:

    Awesome.

  6. Erik Loomis:

    I do think this will change in the 2nd term, but good point.

  7. howard:

    to take it one step further, when hick, then the mayor of denver, was first running for governor, of course many of us various classmates connected via email to discuss it, and my contribution was to suggest that if an enterprising denver post reporter called one of us to “see what hick was like in college,” we should all say “can’t remember a thing.”

  8. Semanticleo:

    “It’s a sticky wicket for Obama,”

    Stickier than resinous trichomes, I’d say. While he continues to flout his Habeus Corpus bona fides, he must be cognizant of how tax revenues will be enhanced, he fails to grasp the populism which got him elected in the first place. That cognizance must be dissonant, as he continues to rely on polling for his decisions.

  9. Murc:

    I hope not.

    DOMA is a shitty law, but it’s still a law until it can be repealed or struck down. The Obama Administration SHOULD continue to enforce it. In fact, I’m of the opinion they should continue to defend it in court; I am aware that, historically, plenty of administrations don’t defend laws they don’t like, but I can’t help but feel that’s an abrogation of the duties of the executive branch.

  10. Fed up in PA:

    I think this is the issue for the democrats to run on in the midterm elections. The ones they lose regularly because they can’t get out the vote. Obama et al need to come down in favor of legalization now before more lives are ruined over a substance that is more harmless than alcohol by far.

    Not only legalization but get the non violent cannabis ‘criminals’ OUT of the legal system. clear their records and put this dark chapter of the American experiment behind us all.

    Eric as someone who often seems the most liberal on social issues the tone of your piece sounds rather ambivalent. Sorry I am not a miner but I don’t understand how you come down as waffling on an issue that more than 50% of Americans are in favor of and that has little downside and a whole lot of upside.

  11. Semanticleo:

    The message from like-minded blogs is we can’t critique Obama until after the Inauguration.

    Yup. All should be right with the World, by then.

  12. Karen:

    I agree with you, but we need an argument that explains why the Feds are allowing pot in WA and CO, that isn’t “banning pot is a stupid law we won’t enforce, unlike the other important laws states don’t like, such as the Clean Air Act and the Endangered Species Act.” (I think those other laws are vital, but since I live in Texas, I know very few other people who agree.)

  13. Malaclypse:

    While I Am Not A Tax Attorney, just having the IRS change working definitions, while leaving contradictory law in place, is probably making actual gay couples worse off in practice. Imagine doing your taxes, and knowing that, whether you check single or married, in good faith or not, will be subject to audit and penalty under unknowable future rules. The degree of clusterfuck this creates cannot be overstated.

  14. Dirk Gently:

    Additionally, as Joe Scarborough and the like enjoy pointing, out, about 50,000 more people voted to legalize marijuana in Colorado than voted for Obama. This is a really easy “keep big gummint out of it” tack that plays really well out West, which will also continue to be strategically important over the coming years, where the old Midwest firewall may not be as secure as it used to be.

  15. Semanticleo:

    DOMA; much safer territory.

  16. Erik Loomis:

    The idea that Democrats can win on an openly pro-pot agenda–as their centerpiece–is totally absurd.

    That is political suicide. LOTS of older voters are very uncomfortable with this and they are the ones who come out in a midterm election.

  17. djw:

    I think this is the issue for the democrats to run on in the midterm elections.

    Certainly, getting this on the ballot in a few states might be a nice turnout boost, but the idea of a political party that has been dominated by politicians who pretty strongly oppose what these initiatives are doing would make this strategy exceedingly implausible.

  18. Bitter Scribe:

    The only thing about this IMO is, non-enforcement would open Obama up to charges of hypocrisy: “You went after Arizona for pre-empting immigration laws, but you won’t enforce federal laws for pot?”

    OTOH, the people who would say that are mostly right-wing shits, so fuck ‘em.

  19. L2P:

    I’m not sure what you think Obama’s been doing.

    The DEA is NOT doing “what it wants around marijuana.” What the DEA wants to do is go to every Medical Marijuana Collective in California, execute a search warrant, and arrest the proprieters for a violation of the CUA. They aren’t. A few MMC owners have been targeted under pretty strict guidelines, usually as part of joint state/federal task forces, but thousands and still operating and raking in millions of dollars a year.

    I’d expect he’s going to do roughly the same thing in Colorado and Washington. They’re going to look for dealers that have gang or criminal connections (besides just, you know, the buying and selling of marijuana and structuring and stuff), or dealers that are getting too large, and otherwise keep out of it.

    The real action is going to be land use and state and local regulation. Because these activities remain federal crimes, there’s an interesting legal dispute over whether local government regulations are preempted by federal law. In other words, it’s possible that once these activities become legal, they become unregulatable.

    These are the joys of government by initiative.

  20. James E. Powell:

    Why not put together a Simpson-Bowles type super-panel of super-experts? And not for the usual reasons of deflecting and delay, but to answer several basic questions. There is a lot of money spent on the “War on Drugs” and very little good to show for it.

    The purpose would be less about the actual recommendations of said super-panel, but more about the opportunity to publicize the awful facts that are not widely known and rarely discussed.

  21. L2P:

    Prosecutorial discretion.

    They’re doing the same thing in California right now. There’s thousands of people selling pot, literally as I type this, and no one at the Federal government cares. They do not care. They are not getting ready to prosecute. These are the medical marijuana collectives selling under the Compassionate Use Act.

    They will prosecute if they get evidence that the sellers are gang related, involved in criminal activity, or conducting large-scale operations. But if it’s a small-scale operation that is otherwise abiding by the law, they use their discretion to let the local authorities deal with it.

    Nobody cares.

  22. joe from Lowell:

    Does “I think this will change in the second term” mean that you think DOMA will be struck down in the courts? Or that you think the Obama administration will order the IRS to take affirmative acts that directly contravene federal law?

    I don’t find the second scenario plausible at all. Contrary to what we’ve all heard, they are not, in fact, a gang of Chicago criminals. Doing X when federal law says Thou Shalt Not Do X goes quite a bit beyond watering down enforcement.

  23. L2P:

    You just check “married.” If they audit you, you don’t concede. If you go to court, the Treasury won’t dispute that you’re married.

    That’s the end of it.

  24. Semanticleo:

    “” What the DEA wants to do is go to every Medical Marijuana Collective in California, execute a search warrant, and arrest the proprieters for a violation of the CUA. They aren’t.”

    Not lately; I mean not since he wanted votes, again. There were quite a few raids by DEA. When those ceased, it was for political expediency (natch!) They shifted gears and put local pressure on to close dispensaries, which they did close. He put the leash on DEA for practical reasons, which he no longer cares to remember.

  25. James E. Powell:

    Legalizing marijuana has been and will continue to be one of those issues where the public will always be ahead of the elected officials.

    It’s sort of like same-sex marriage where the people who are against may be fewer, but they are louder and more likely to vote.

    This only changes with years of public advocacy.

  26. Semanticleo:

    There is a lot of money spent on the “War on Drugs” and very little good to show for it.

    Law enforcement relies on asset acquisition to inflate their budgets for overtime and infrastructure. Jobs could be lost.

  27. James E. Powell:

    While it’s great that fewer people are going to prison for marijuana, I’m not comfortable with prosecutor’s discretion.

  28. James E. Powell:

    There are always other crimes, other criminals.

    While anyone associated with any ‘task force’ or other drug-related assignment will tend to insist they keep their jobs, the police officers and ADAs I’ve spoken with over the years are nearly unanimous in the opinion that the War on Drugs is a waste of time and resources.

  29. Malaclypse:

    If you go to court, the Treasury won’t dispute that you’re married.

    I’m glad of your certainty regarding future Republican Treasury actions, especially given that the actually existing law unambigiously instructs otherwise.

  30. joe from Lowell:

    And did President Obama explain all of this to you in your thrice-weekly email correspondence, or are you just explaining what just hadta happen based on your conception of how the world works?

  31. Murc:

    It sounds like you’re advocating the government simply ignore laws that have been legitimately enacted by its own legislative branch because it doesn’t like them anymore. Why have laws at all?

  32. Fed up in PA:

    The republicans won 2006 midterms using the gay marriage wedge issue. Look where we are 6 years later on that same topic. Time change people’s opinions change.

    The war on cannabis is a huge human rights issue that affects more people than gay rights. It timely end speaks to a desire to govern based on science and not hypocrisy.

    Your argument that the old folks who are ‘very uncomfortable’ and turn out to vote in midterms and that using this as an issue is risky is exactly the point I am making.

    They are not the voters you need to mobilize in the midterm to take the house and clear some of the republican run state houses, its the young(er)normally uninterested voters who would leap to support this reform. They know first hand the damage this has done to their friends and themselves.

    Your ‘in 15 years maybe…’ comment is ludicrous. How long was it from when the first state rolled back the prohibition of alcohol until it went national? less than 2 years.

    I have lived with this prohibition for my whole life and no other issue speaks as plainly to the boot in your face relationship between our government and its people. Good citizens lives are ruined for smoking a mostly harmless plant.

    Its a system that is just plain wrong and evil on too many levels to not retire at the earliest time in history we can.

  33. joe from Lowell:

    “If they audit you…”

    If you go to court…”

    This is not a good way to go about things.

  34. Murc:

    To clarify what Mal said, you can be audited way back into the past. It’s not a year-by-year thing where if the government accepts your tax returns they’re “locked.” If they suspect you cheated on your taxes or did something improper five years, ten years ago (don’t know what the stature of limitations is) they can pop open an audit and haul your ass in.

  35. Erik Loomis:

    It’s easier to organize around hate for elections.

    If you can mobilize younger voters to vote around pot, then do it. But it should be done on the state level.

  36. joe from Lowell:

    Um, the Republicans got their asses kicked in the 2006 mid-terms. It was the failure of that gay marriage issue in those elections that led them to abandon it as an election strategy.

    Its a system that is just plain wrong and evil on too many levels to not retire at the earliest time in history we can.

    The intensity of an issue’s import does not change the strategic calculus. “It’s got to work!” is not an answer to the question “Will it work?”

  37. Karen:

    I’m a civil prosecutor. Our discretion is limited to specific cases, and to the whims of our bosses. We need a broader explanation that can’t be used against the Feds when they try to enforce national child labor standards on factory farms. Why would the Feds protect pot-smokers but punish simply family farms for allowing twelve-year-olds to work cattle slaughtering machines.

  38. Semanticleo:

    sorry. my snark button failed.

  39. Hogan:

    The republicans won 2006 midterms

    If losing 30 seats in the House and six seats in the Senate is “winning,” then I’d hate to see what losing looks like.

  40. Karen:

    It’s more than just the AZ immigration laws. Plenty of states object to environmental laws because the increase the costs of doing business. Why enforce federal health, safety, and environmental standards when those cost good people jobs, but allow the DFH’s their Demon Weed?

  41. Semanticleo:

    That is the way it works.

  42. joe from Lowell:

    Gotcha.

    The ol’ gut check.

    That certainly never fails as a way to understand the world.

  43. Fed up in PA:

    my bad I was thinking of ’04′

  44. Karen:

    Pretty much this. I work on the civil side, but I know plenty of criminal DA’s who loathe drug cases. They never get the kingpins, but they are ruining the lives of poor teenagers. Since even prosecutors like to sleep at night, this is not a win-win situation.

  45. Malaclypse:

    And this doesn’t even touch the taxability-of-benefits issue, which means that each employer will need to decide whether to issue W-2s according to actually existing law or not. And inevitably different employers will do different things, meaning that gay couples won’t even know if their W-2s are accurate or not.

    One of the reasons DOMA was such bad policy from the very beginning is that it makes shit like this hard to avoid. But just ceasing enforcement temporarily until the Santorum Presidency makes it dramatically worse.

  46. Sherm:

    Not my area of expertise, but I believe that the standard SOL is three years, with a longer time for fraud.

  47. njorl:

    I could see your point if unenforced laws were a rare thing, but there are mountains of unenforced laws.

  48. djw:

    The republicans won 2006 midterms using the gay marriage wedge issue. Look where we are 6 years later on that same topic. Time change people’s opinions change.

    But Republican politicians oppose SSM. Democratic politicians don’t support legalizing marijuana, for the most part.

    Forget whether it’s a good idea, it’s not plausible. Parties don’t change like that. When the Democratic party actually takes a pro-legalization stance, it’ll be because the politicians have been dragged, kicking and screaming, by voters. This isn’t the kind of process that can happen in a couple years.

  49. Dana:

    Yeah, I’m a bit nervous about the idea of the federal government not enforcing federal laws because they conflict with state laws. Especially when it comes to commercial regulations. Since I live in the south.

  50. Malaclypse:

    with a longer time for fraud.

    I’m not finding it implausible that Treasury Secretary Ron Paul will take the line that the sodomites knew they were not married, so fraud it is.

    Either way, the whole thing violates the Cardinal Tax Rule of Never Become a Test Case.

  51. Murc:

    I think the government could make a strong fraud case if you check ‘married’ knowing full well that existing, on-the-books law doesn’t recognize your marriage.

    You’d be exposing yourself even if the current Treasury didn’t feel like prosecuting.

  52. Sherm:

    This tax complication never dawned on me. Total clusterfuck is right. So, what is a legally gay married couple suppose to do? File a joint state return as “married” and two separate single fed returns? At least some couples will avoid the marriage penalty I guess.

  53. Derelict:

    This has actually been studied in-depth many times over the last 60 or so years. The results are always the same: Pot has much lower health effects and much lower societal impact than alcohol.

    As I remember it, the National Academy of Sciences released a study back in the 1970s that stated that the only negative impact associated with marijuana use is that of going to jail.

  54. Malaclypse:

    So, what is a legally gay married couple suppose to do? File a joint state return as “married” and two separate single fed returns?

    Under existing law, that is exactly what they are required to do.

  55. Darkrose:

    Here’s the problem:

    In 2010, California was electing a governor and a senator. Prop 19, a legalization referendum, was on the ballot. It lost 53.5% to 46.5%.

    The stoners didn’t come out to vote, and the measure was defeated by aging baby boomers like one of the guys in my office, who’s reliably liberal, but looks back on the ’60′s and thinks they went overboard.

  56. rea:

    I’m not comfortable with prosecutor’s discretion

    There is no workable criminal justice system that does not involve some degree of prosectorial discretion.

  57. rea:

    I know plenty of criminal DA’s who loathe drug cases.

    There are some sensible ones, true–but I know lots of prosecutors and judges who are big enthusiasts of the war on drugs, and who have to be fought, for example, to follow the medical marijuana laws.

  58. Fed up in PA:

    …and look what happened in Colorodo
    81% voter turnout and legalization passed by a larger margin than Obama.

    A lot changed in 2 years. Not to mention there are / were a lot of areas in California that profit from keeping pot quasi-legal like Humbolt county where ‘the stoners’ turned out against legalization.

    502 in Colorado is going to show the way to make cannabis available and profitable for its people and its government.

    Its a mostly closed system that lacks many of the unanswered questions of both the Washington and California laws. Its just in that it lets people grow at home and encourages in state business and it taxes the shit out of it to a good end (schools).

    Honestly how can people be in favor of legal gambling, lotteries and alcohol and not pot in this day and age.

    BTW, they did go overboard in the 60′s they elected Nixon and it all went to shit after that.

    The war on drugs is and was always a war on the nation’s young, intellectuals, poor or disfranchised people.

    see Justice Souter
    http://en.wikipedia.org/wiki/David_Souter

    time to change that

  59. Outlier:

    Actually if you look at the composition of the electorate, 18-30 turnout in the 2010 California election was a 2% greater share than the 06 midterm election. You also had some Democratic consultants start to say that they could use that issue similar to the way Republicans used gay marriage ballot initiatives to motivate their base.

  60. Lev @ LibraryGrape.com:

    Yeah, Obama doesn’t entirely understand his own appeal, or his supporters. Not a new gag, I attribute it to a meteoric rise not making him spend years in the trenches in political battles. It was fairly clear during the debt ceiling crisis, for example, that he was dead convinced he knew what the public expected of him, and as the polling after the fact showed, was completely dead wrong.

    But at least he’s capable of learning.

  61. Fed up in PA:

    again my bad it was
    David Ginsburg…
    http://en.wikipedia.org/wiki/Douglas_H._Ginsburg

  62. JKTHs:

    As I remember it, the National Academy of Sciences released a study back in the 1970s that stated that the only negative impact associated with marijuana use is that of going to jail.

    And the arbitrage from people buying shares in Frito-Lay just before legalization occurs.

  63. Lev @ LibraryGrape.com:

    This is why any real push for drug decriminalization must be done during an economic boom. Disbanding the ATF Bureau drops thousands of jobs, but if you have an excellent job market it sops them all up. Incidentally, this is probably true of significant defense cuts too. If we can get back the House and the economy starts really chugging, the late 2010s might see some significant changes there.

  64. Lev @ LibraryGrape.com:

    Any push on the federal level, that is.

  65. Outlier:

    You also had a completely different initiative (no statewide regulations on legalization), interest group support (no establishment groups like the Drug Policy Alliance or Marijuana Policy Project), and a historically low turnout year for Dems. Even with all those headwinds, more young voters turned out statewide in a statistically measurable way.

  66. Anon21:

    When it comes to, say, criminal statutes, sure. Prosecutorial discretion means that some laws are literally never enforced. When it comes to allocating survivor benefits under the Social Security Act (one example of federal activities that DOMA affects), I’m pretty skeptical that you’ll find a whole lot of duly-enacted statutes being openly flouted by the officials charged with administering those programs.

  67. Left_Wing_Fox:

    The problem is that the demographics aren’t necessarily compatible. You need to make sure you aren’t going to lose more than you gain. I’d poll the hell out of it in the region before running on that platform, personally.

    From the standpoint of legalization, these are much more likely to succeed as non-partisan ballot initiatives than through party adoption.

    Federally, the safest thing Obama can do is encourage the DEA to shift Marijuana to a Schedule II or Schedule III drug. It’ll still be federally controlled, but at least that can allow them to shift resources away from busting medical marijuana users or dealing with legalizing states.

  68. Sherm:

    I like how you failed to directly implicate the Governor there. As far as anyone reading your comment knows, you guys were smoking lucky stripes while discussing marijuana legalization.

  69. Anon21:

    Which was not a midterm election where base turnout needed to be goosed. So basically, the mixup vitiaites any point you may have had.

  70. howard:

    can’t remember a thing.

  71. Anonymous:

    I’m also glad he thinks court is free.

  72. Anon21:

    What changed in two years was presidential vs. midterm. The midterm electorate is always older and more conservative. That’s why this is a dumb midterm election strategy.

  73. Anon21:

    I think what he means is that he’s not comfortable with having an unjust law on the books and pointing to prosecutorial discretion as the saving grace.

  74. Anonymous:

    So if you want to match the old conservatives, with a ton of younger voters, put something on th ballot that they desperately want. Like the legalization of pot.

  75. Fed up in PA:

    “If you can mobilize younger voters to vote around pot, then do it. But it should be done on the state level”

    why the snark? Do you only get teary eyed over the issues of long dead union organizers and victims of the golden age??

    Richard Branson on the failed drug war

    http://www.cnn.com/2012/12/06/opinion/branson-end-war-on-drugs/index.html?hpt=hp_t2

    NPR on legaization

    http://www.npr.org/2012/11/13/164981433/legalizing-and-regulating-pot-a-growth-industry

    Breaking the Taboo
    Published on Dec 6, 2012
    Narrated by Oscar winning actor Morgan Freeman, “Breaking the Taboo” is produced by Sam Branson’s indie Sundog Pictures and Brazilian co-production partner Spray Filmes and was directed by Cosmo Feilding Mellen and Fernando Grostein Andrade. Featuring interviews with several current or former presidents from around the world, such as Bill Clinton and Jimmy Carter, the film follows The Global Commission on Drug Policy on a mission to break the political taboo over the United States led War on Drugs and expose what it calls the biggest failure of global policy in the last 40 years

    http://www.youtube.com/watch?v=8UtNF-Le2L0&feature=youtu.be

  76. NonyNony:

    I’m not finding it implausible that Treasury Secretary Ron Paul

    This will now haunt my nightmares.

  77. Murc:

    Also, I don’t think there are a lot of less-than-two decade old federal laws that were huge, well-publicized pieces of legislation that suddenly stopped being enforced.

    This isn’t like laws that say, for example, that all motor vehicles need to have someone walking in front of them with a lantern. If the Obama Administration can simple refuse to enforce DOMA, why can’t a hypothetical Christie Administration refuse to enforce the ACA against insurance companies?

  78. Rhino:

    So if you want to match the old conservatives, with a ton of younger voters, put something on th ballot that they desperately want. Like the legalization of pot.

    Was me. Stupid cookies.

  79. Joe:

    As Scotusblog live blogs the possibility of cert., #1 is what immediately came to mind for me.

  80. djw:

    Exactly. Fed Up in PA fails to even acknowledge the substantial risk associated with this strategy–not just to D electoral chances, but to his cause. Odds are we’ll have a much older, R-leaning electorate in two years, and no ballot measure is going to change that.

  81. Joe:

    As to ‘poor teenagers,’ it is my understanding the new laws involve those over 21. Another widespread practice for many not protected in smoking in public places.

  82. spencer:

    And it has also been shown that the idea that the GOP won on gay marriage is a myth, a figment of conventional wisdom that just ain’t so.

  83. L2P:

    The SOL is 3 years.

    It’s not fraud. You have a good-faith belief that you are married.

    And that’s it.

  84. Joe:

    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.

    This sort of thing is gratuitous.

  85. lawguy:

    I understand that the polls show that the older generations do not believe in legalizing pot. But given that I’m 66 and in the first edge of the “hippy” generation, I cannot for the life of me figure out what happened to all those people in central Ohio who used to smoke dope with me.

  86. L2P:

    The problem is “We need an argument that explains why the Feds are allowing pot in WA and CO, that isn’t ‘banning pot is a stupid law we won’t enforcee need an argument for why we are letting.’”

    The answer is “Prosecutorial Discretion.”

    If the problem is “Prohibiting marijuana is unjust in all cases and should be legal,” then prosecutorial discretion probably isn’t the answer. But federal legalization isn’t on the table.

    So we’re left with prosecutorial discretion.

  87. L2P:

    I don’t know what a “civil prosecutor” is.

    I do know that the feds have NO PROBLEM explaining why they aren’t going to waste their limited resources shutting down a guy selling small amounts of marijuana to consenting adults.

    I also know that the feds have NO PROBLEM explaining why they ARE directing those limited resources to protecting children from being maimed and killed, no matter where those children are going to be maimed or killed.

    That’s why we have “prosecutorial discretion.” It directs the use of scarce enforcement resources.

  88. L2P:

    Because we have elections. And we live in a democracy. And that means the people that win the elections get to do what they want.

    Work hard to make sure we KEEP winning elections, and this won’t be a problem. Don’t, and it will be. There’s nothing else you can do about it.

  89. Scott Lemieux:

    The republicans won 2006 midterms using the gay marriage wedge issue.

    ?

    I hope they keep winning like that in the future.

  90. Colin Day:

    If it’s Republicans, I’ve love to see it!

  91. James E. Powell:

    That and the tendency of prosecutorial discretion to track with socio-economic status.

  92. John:

    From what I can gather, a “civil prosecutor” is a prosecutor who works on civil cases in a DA’s office. As you might assume from the name.

  93. ironic irony:

    An alternative Gonzales defense. Nice.

  94. ironic irony:

    “Santorum Presidency.”

    Fuuuuuuuuuuuuuuuuuck me.

  95. fledermaus:

    The really annoying thing about all this is going to be watching the DC press corps titter like schoolchildren and make stale Cheech and Chong jokes every time the issue comes up.

    The feds can’t require state law enforcement to enforce federal law (if I remember my Con law correctly) but they could do something like the drinking age and tie federal highway funds to prohibition. But that may have political consequences.

  96. Hogan:

    It is an answer. The question is whether it’s a good answer.

  97. That Other Mike:

    Yep, just ask Dick Morris.

  98. Joe:

    Prop 8 & Windsor granted.

  99. djw:

    Obama, like every politician ever, is already wide open for charges of hypocrisy.

  100. Fed up in PA:

    exactly

  101. Sherm:

    Agreed.

  102. Bill Murray:

    well they might be congenial and courteous all the time while prosecuting cases

  103. Murc:

    It’s not fraud. You have a good-faith belief that you are married.

    No way that stands up in court. There’s a law that says ‘you are not married in the eyes of the federal government.’ Any prosecutor who wants to can drop the hammer on that.

    It likely wouldn’t even go to a jury. It would be a question of law, not of facts. So we’re in summary judgment territory.

  104. joe from Lowell:

    The really annoying thing about all this is going to be watching the DC press corps titter like schoolchildren and make stale Cheech and Chong jokes every time the issue comes up.

    I disagree; I think that reaction is a positive for the legalization cause.

    It’s an admission that marijuana usage is not a Very Serious Problem, Young Man. My sense is that it serves to draw attention to the disparity between the purported justification for prohibition, and the reality.

    I can’t imagine that reaction to a proposal to legalize heroin. It would be shocking and callous, in light of all of the misery heroin addiction causes. The opposite reaction to discussing marijuana is a opportunity to exploit.

  105. Semanticleo:

    No one has ever died from cannabis. Your ‘gateway drug’ meme is as tired as the belt and suspenders you keep your trousers up with.

  106. DocAmazing:

    Same thing that happened with older gay homeowners in San Francisco: as they gained economically, they moved rightward politically.

  107. DocAmazing:

    ATF isn’t the bunch that goes after pot; that would be the DEA. The DEA has plenty of other stuff in its portfolio, like regulating physicians’ ability to prescribe, and tracking legitimate pharmaceutical manufacturing of controlled substances. If they wanted to lean on outfits like Merck to tighten up distribution of oxycontin (for example), they could redirect personnel with no loss of jobs.

    “Drug enforcement” is a phrase with many possible meanings, not all of them involving kicking in the doors of bong enthusiasts.

  108. joe from Lowell:

    WTF are you talking about?

    What “gateway drug meme?”

    You seem to be reading off laminated index cards, and not caring very much whether they apply.

    I can usually trace back stupid comments to some plausible, though stupid, chain of logic, but you’ve just got me baffled here. I haven’t the foggiest idea how you managed to go from the point I made about the PR implications of the “giggle reaction” to the point you think I made about a “gateway drug meme.”

  109. joe from Lowell:

    Did you see the words “marijuana” and “heroin” in the same comment, and figure “close enough?”

    Is that it?

  110. elk:

    Even in the counties in Colorado in which pot and Obama both lost, pot polled at an average rate of 43% while Obama polled at an average of 28%.

  111. Semanticleo:

    I can’t imagine that reaction to a proposal to legalize heroin. It would be shocking and callous, in light of all of the misery heroin addiction causes. The opposite reaction to discussing marijuana is a opportunity to exploit.

    A guy got booked for assault in a drunken brawl, and he asked his cellmate;
    “why did you kill that guy in the crapgame” His reply; “started with Bingo in the Catholic Church”

    I’m 63 but you must be in your 80′s based on your cultural ignorance. If you cannot understand via this simple metaphor, you aren’t worth the time, or gunpowder it would take to blow your brains out.

  112. Anonymous:

    Which drug do I need to take to make your comments make sense?

  113. Semanticleo:

    Pseudo-monius drugs

  114. joe from Lowell:

    OK, now I see. Perhaps I should have put “marijuana” before “prohibition” in this sentence:

    My sense is that it serves to draw attention to the disparity between the purported justification for prohibition, and the reality.

    The “opportunity to exploit” I mentioned refers to an opportunity regarding the legalization of marijuana. Not all drugs, not heroin, but marijuana.

    I pointed out the different public reaction that we’d see if there was a proposal to legalize heroin, to make the point that the movement to legalize of marijuana has this advantage, that proponents could take advantage of. I was actually saying the opposite of what you took away. I was saying that there is a big difference between the two causes, at least politically, and that one does not lead to the other.

  115. joe from Lowell:

    Or perhaps for a regulatory agency that brings cases to court.

  116. joe from Lowell:

    I do know that the feds have NO PROBLEM explaining why they aren’t going to waste their limited resources shutting down a guy selling small amounts of marijuana to consenting adults.

    Sure, but what about the guy who makes six figures selling truckloads of pot to a series of storefronts? What if that guy has long had business dealings with people known to be involved in illegal drug trafficking?

    That becomes somewhat harder to explain.

    That’s why we have “prosecutorial discretion.” It directs the use of scarce enforcement resources.

    Yes, but traditionally, it does so on the case-by-case level, and not in regards to whole categories or sections of the law. This would not be standard prosecutorial discretion.

  117. Speak Truth:

    Treat it like gay marriage and let the states decide what they want.

    Oh, so NOW you’re all about federalism!!

    Good to know

  118. joe from Lowell:

    That’s why this is a dumb midterm election strategy.

    But, maybe, a good presidential year strategy?

    I don’t think the presidential candidate could run on the issue, but having state ballot initiatives in presidential years…I like it. Change the electorate.

  119. joe from Lowell:

    The big jump in that age group’s participation was 2008.

    It’s the Obama effect. Even in down years, there’s a bump among that age group.

    There was one among the same age group during Reagan. You can still see a wobble in voting patterns broken out by age for the age who would have been young Reagan voters.

  120. Karen:

    I work for a state agency doing civil cases, mostly involving licensing and permitting violations.

  121. Karen:

    DING DING DING WE have a winner!! Discretion is case-by-case. It is NOT the basis for broad-ranging policy decisions. That said, the Feds could always make a general policy call that they won’t waste money on pot enforcement in states where it’s legal, provided the states do a decent job of keeping out the cartels. There is also “let’s wait and see how these first two states manage.”

  122. John:

    I’m pretty sure the rule of law does not mean “the people that win elections get do what they want”. It is the executive’s responsibility to enforce laws duly passed by congress.

  123. Procopius:

    Can’t do it. I don’t have time to find it, but there was an item I read a few days ago that reminded me of something. Several years ago, after Tricky Dick declared The Global War on Drugs and Blahs, the United States pressed on the governments of the world an international treaty that engraved in stone that Marijuana was a Class I Narcotic Drug, prohibited in every signatory nation. Now, I know that we don’t pay any attention to treaties like the Geneva Convention or the international laws of war, but do you really think the U.S. government is going to allow a solemn treaty that makes marijuana a Class I prohibited substance to be flouted? After all, international treaties are the Law Of The Land, the Constitution says so. So the states can’t make marijuana legal. And I’m sure Tony Scalia, Alito, Thomas, and Roberts will all agree.

  124. theod:

    That’s one of the nicer effects of marijuana, of course.

  125. theod:

    That’s the marijuana talking.

  126. Sebastian H:

    The strong answer is that federalism experiments can be a good thing. The unfortunate part is that modern liberals don’t like the strong answer, so they have to ignore it and search for lame answers.

  127. Sebastian H:

    That’s an interesting point about how signing treaties can hamstring you later. I’m sure that will get excellent analysis around here: we should only enforce good treaties maybe?

  128. Anonymous:

    But this isn’t entirely true, is it? Aren’t there lots of archaic, outdated laws on the books that police and prosecutors never enforce?

  129. Sherm:

    Ok. The taxpayer is misrepresenting his or her marital status in the eyes of the federal government. But to be fraudulent, the material misrepresentation must be made with the specific intent to defraud the government out of taxes known to be owed. Such intent is clearly lacking in my opinion, or at least very hard to prove, and fraud must be proved by clear and convincing evidence. The gay couple is not representing to the IRS that they are married for the specific purpose of avoiding taxes, but because they are married in their eyes and in the eyes of the state in which they live. That’s not fraudulent.

  130. Hogan:

    “Don’t think they can be a good thing” in the sense of “think they can also be a bad thing.”

  131. djangermats:

    that’s the joke

  132. djangermats:

    DEA busted a bunch of dispensaries in cali in 2012.

    I’m sure whatever Obamas doing is super politicksy but idk that ‘laying off before the election’ fits the facts on the ground.

  133. djangermats:

    I wonder what the chance is, if Obama rescheduled weed (I’m assuming this is a thing he can, formally, do), that congress would pass a veto-proof bill reversing that, like with Gitmo and the one or two other times that’s happened.

  134. Hogan:

    A bunch. Is that a metric bunch or an imperial bunch?

  135. DocAmazing:

    It was just short of a shitload.

  136. joe from Lowell:

    I’m sorry, what?

  137. joe from Lowell:

    The keywords being “old” and “archaic.”

    Wishing won’t make the Controlled Substances Act archaic.

  138. Outlier:

    Technically the DEA administrator (Michele Leonhardt) can reschedule any drug but as she is as hard core old school drug warrior as they come she’s not gonna do it unless Obama gives the order and she’ll fight him every step of the way.

    I don’t think Congress would be able to get a veto proof majority if Obama were to step up on the issue. Although nothing would surprise me at the end of the day. Last year the House took a vote for an amendment to cut off DOJ funds used to go after medical marijuana operators in the states where that is legal. It failed but still got 184 votes with some republicans on board. Furthermore, when DOJ first released the Ogden memo in 2009 saying they would essentially take a hands off approach to medical marijuana, there was shockingly litte faux-outrage from the right or left. I also feel like the Dems in the senate would be divided enough on the issue to not take a measure like that up. I just don’t see Harry Reid taking up something that gets 44 (Rand Paul the lone holdout) GOP votes and maybe 20ish Dem votes.

  139. Unsympathetic:

    The problem with legalizing marijuana isn’t “the will of the people” — it’s that at least 30% of total prosecutions involve weed possession/distribution. I was on the grand jury for Baltimore County – it was more than that for my time, but looking for a national average, that sounds about right.

    So if you’re all of a sudden dropping the caseload by 30%, you have ELIMINATED the ability to justify FTE count and pension dollars for both police and prison staff.

    This is the prison-industrial complex: Invent a problem [Drugs! Bad!] to justify paying staff to “prevent” an action that isn’t an actual problem in the first place. And all of those dollars come out of taxes.. so Republicans who want lower taxes should be on this, but we can be sure they won’t, because shut up hippy.

    The other reason for supporting legalization is that if pot is decriminalized, we eliminate the majority of the money supply for mexican gangs. Yes, cocaine is an issue, but it’s an order of magnitude lower in total sales and prosecution count.

  140. marijane:

    thanks, jay leno!

  141. Halloween Jack:

    Oregano joints and the placebo effect, I’m sure.

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