WAKE UP WAKE UP THEY'RE COMING FOR ME I NEED BAIL MONEY
wat
THE FBI THEY'LL BE HERE ANY MINUTE BECAUSE I ATE THAT NO-GLUTEN BROWNIE AT AN OSCARS PARTY IN LOS FELIZ
What the hell is going on?
The feds! They're coming after us for our marijuana!
Yes! Yes. That. The rescindition, with the thing, and Sessions. And marijuana.
Okay. And do you know the context?
YES! Yes. Yes. A bit. A bit. No. Not really.
Okay. Let's talk about what it means.
So I'm not getting arrested by the ATF right away?
You don't . . . the ATF doesn't . . . you know, just hold on a second and let's go through this.
Okay.
So. Let's start with basics.
Many states make it illegal to possess or distribute marijuana. Until recently it was all states. It's also a crime under federal law. Even simple possession of marijuana — that is, possession for personal use, not to distribute to someone else — is a federal crime.
Wait, you were a federal prosecutor back in the 18th Century or something. Did you actually prosecute people for marijuana?
Yes. I'm not proud of it. I prosecuted people for involvement in marijuana cultivation and distribution operations — operations involving 500 plants or more. It was wrong, and I'm actually ashamed of it.
For many years there wasn't a conflict between state and federal law. Both prohibited marijuana. But then states, one by one, began making marijuana legal — first for medical purposes, then for personal use.
What did that do to the federal law?
It did nothing. Marijuana remained illegal under federal law. Under the Supremacy Clause to the United States Constitution, the states can't immunize people from federal prosecution — they can make things legal under state law, but can't make things legal under federal law. Cultivating marijuana and distributing it were a federal felony. Only policy, prosecutorial discretion, and resource allocation would save you from being prosecuted federally for marijuana distribution that was legal under state law.
That sounds like a recipe for uncertainty and disaster.
It was. Under the Obama Administration, the United States Department of Justice issued a series of memos with guidelines for federal prosecutors to help them decide whether and when to launch federal prosecutions of marijuana offenses that might be legal under state law. The first, in October 2009, was called the Ogden Memorandum, named after a Deputy Attorney General. It said that federal prosecutors "should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with state laws" permitting medical marijuana use. Instead, it said that federal prosecutors should focus on only those marijuana cases that reflected high federal interest: cases involving possession of guns, violence, sales to minors, ties to criminal enterprises, financial shenanigans, and distribution of other illegal substances.
But in 2009 the state laws were only about medical marijuana, right? What about when personal use marijuana became legal in some states?
There were more memos about that, called the Cole Memoranda. Deputy Attorney General Cole issues a series of memoranda further articulating Department of Justice policy in the face of emerging state laws legalizing personal use of marijuana. The upshot was this: the Cole Memoranda said that as long as states effectively regulated marijuana usage to assure compliance with state personal use laws, the Department of Justice would focus its resources on federal interests: sale to children, connections to organized crime, transportation from one state to another, use or cultivation on federal property, and use of financial systems to launder or conceal proceeds. Other parts of the federal government followed suit: for instance, the Treasury Department's Financial Crimes Enforcement Network (FINCEN) issued guidelines for financial institutions for dealing with customers engaged in state-legal marijuana businesses.
So if you want to grow or sell marijuana in states where it's legal, you're safe from federal prosecution as long as you obey state law, stay away from kids and organized crime, and the federal prosecutors obey the Department of Justice guidelines?
In theory. Plus, Congress got into the act.
In 2014, in the Rohrabacher-Farr amendment to an appropriations bill, Congress prohibited the Department of Justice from using federal money to "prevent" states from implementing laws making medical use of marijuana legal. Courts have found that this amendment may prohibit federal prosecutions for medical marijuana activities that are legal under state law.
Since then, Rohrbacher-Farr has been included in each appropriations bill and continuing resolution.
So what does all this mean for people who want to use or sell marijuana in states law allow it?
First of all, practically speaking, federal prosecutors can't do much about marijuana use. Federal prosecutors only have the resources to prosecute a tiny number of cases compared to state prosecutors, and the vast majority of their time is taken up with other priorities: serious white-collar crime, immigration crime, guns, violent crime, and so forth. Typically federal prosecutors have guidelines that discourage taking any but the biggest marijuana cases — cases involving hundreds or thousands of kilos or many hundreds of plants.
Second, between the Ogden and Cole Memoranda and Rohrabacher-Farr, federal prosecutors haven't made serious attempts to thwart state laws making marijuana legal. They've made a few gestures consistent with the Cole memorandum — for instance, by sending letters to landlords of marijuana dispensaries that were operating in violation of state law, threatening that they could face prosecution or forfeiture for allowing their property to be used for marijuana activities in violation of state law.
But that could change.
How does Attorney General Sessions figure into this?
Sessions is a staunch foe of marijuana legalization. He asked Congress not to include Rohrabacher-Farr in appropriations bills back in 2017. He's previously sent mixed messages about the Ogden and Cole Memoranda. And now, reportedly, he wants to rescind the Ogden and Cole Memoranda and change Department of Justice policy on federal prosecution of state-legal marijuana activities.
Okay. But what does that really mean?
As long as Rohrabacher-Farr remains in every federal appropriations bill, Department of Justice policy is mostly symbolic — the Department of Justice will still be prohibited from spending money on prosecuting people for medical marijuana activities that are legal under state laws. (That doesn't limit prosecutions of non-medical personal use activities, though — but it will be difficult to tease them apart.) And, practically speaking, it's utterly impossible for the Department of Justice to prosecute more than a very tiny fraction of marijuana cases. They don't have the resources. A big U.S. Attorney's Office might file around 1200 indictments a year — that's all indictments for all types of cases and crimes. Of that, maybe a dozen, tops, might be about marijuana. They can't change that without sacrificing other priorities. They could abandon every other type of case and still not do a tenth of the marijuana cases that local authorities do. Moreover, marijuana legalization is quite popular, and federal interference in it is quite unpopular, so there's not a whole lot of upside.
That said, if Sessions revokes the Ogden and Cole memoranda — and especially if he also succeeds in convincing Congress not to include Rohrabacher-Farr in the next appropriations bill or continuing resolution — he'll inject a substantial amount of uncertainty into the situation. Even if getting prosecuted federally for marijuana is so rare that it's like getting struck by lightning, getting struck by lightning remains terrifying and often fatal. This will have relatively little impact on personal users, but it could have a significant impact on the development of the legitimate business side of marijuana cultivation in states where it is legal. Landlords who might rent to dispensaries, businesses that might service them, financial institutions that might handle their money, professionals that might advise them — those legitimate, high-profile, highly-risk-averse institutions will all be deterred from involvement in the industry. The process of turning marijuana from a street drug to a legally regulated commodity will, at least, be slowed down.
But I won't go to jail?
No. Unless the feds decide to file one of their extremely few marijuana prosecutions to make an example of you — if you run a prominent cultivation operation, or run a bank handling a cultivation operation's money, or something like that — your primary criminal risk will still be about compliance with state law. Your main concern will be that businesses and institutions will be slow to support an activity that the citizens of your state have chosen to make legal.
So what are you watching for?
Three things. First, I'm looking for the language of Sessions' revocation of the Ogden and Cole memoranda. Will he simply revoke them, or will he announce a new policy? That new policy will suggest the future risks of federal prosecution. It would not surprise me if this is mostly cosmetic: Sessions may issue a memorandum that has anti-marijuana propaganda but doesn't really change federal priorities or resource allocation.
Second, I'll wait to see if other policies change — for instance, whether FINCEN revokes its financial institution guidelines in reaction to any memo from Sessions.
Third, I will watch to see whether Rohrabacher-Farr is included in each appropriations bill and continuing resolution. If it is, that's still a substantial impediment to a federal anti-marijuana surge. If it's left out, then that signals significantly increased danger. If, on the other hand, it's kept in — or even expanded to include non-medical personal use — that's a good sign in the other direction.
First Edit: Several people think I am overstating how "safe" marijuana cultivation is under the Ogden/Cole/Rohrabacher-Farr regime. Not so. As my friend Nicholas Weaver points out, plenty of state agencies still use criminal prosecution and forfeiture to go after cultivation operations even in states where it's legal, relying on allegations that it's somehow being done in a way that violates state or local law. This 'splainer is primarily about federal involvement.
Second Edit: Sessions has issued his memo, available here. It's vague. It simply rescinds the Odgen and Cole Memoranda and says that the generally established principles of federal prosecution are sufficient to guide federal prosecutors in resource allocation. "These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of the particular crimes on the community." The memo doesn't announce a new policy of pursuing marijuana activities legal under state law.
Absent Sessions announcing new efforts to prosecute state-legal operations, the impact of the memo is mostly to increase ambiguity and risk, and to deter more mainstream businesses from getting involved in the industry, as I discussed above.
Third Edit: My language misleadingly suggested that Rohrabacher-Farr goes beyond medical marijuana, so I clarified that it only forbids Department of Justice spending on prosecutions of medical marijuana legal under state law. Practically speaking, it will be an impediment to personal-use prosecutions as well to the extent defendants claim they are in business to produce for medical use.
Last 5 posts by Ken White
- Now Posting At Substack - August 27th, 2020
- The Fourth of July [rerun] - July 4th, 2020
- All The President's Lawyers: No Bill Thrill? - September 19th, 2019
- Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
- All The President's Lawyers: - September 11th, 2019
Might seizure/forfeiture be the weapon of choice rather than prosecution? Seems to have a potentially larger impact if pursued that way. Are some legal cannabis states more susceptible to seizure than others?
Thanks, Lawsplainer, for the laugh I needed before a meeting I'm dreading.
naughtzero — that's my guess. Forfeiture is both simpler and more profitable.
Sessions is also a huge proponent of forfeiture tactics.
“I love that [asset forfeiture] program. We had so much fun doing that, taking drug dealers' money and passing it out to people trying to put drug dealers in jail. What's wrong with that?" – AG Sessions
Admittedly I read it fast and am not current on the law on this. But the part about the Rohrabacher-Farr amendment essentially prohibiting federal prohibitions for both medical and personal marijuana (if I understood that part right) seems maybe wrong to me.
The current amendment seems to be tagged to "medical marijuana" (Sec. 537), and I thought McIntosh was limited similarly.
Dan T: Yes, that was a bit sloppily written, and I had just corrected it.
Ken, any idea why these issues didn't come up for Alaska? Distance, maybe?
That said, what's missed here by #TheResistance, is that the FDA under the previous admin of Dear Leader had the chance to move marijuana off Schedule 1, did not, and suffered no consequences from Obama. Based on that, the DEA refused to act, and also suffered no consequence.
https://news.vice.com/en_us/article/59wz98/new-documents-reveal-why-the-fda-says-marijuana-isnt-medicine
Had that been done, Sessions would have yet less of an administrative leg to stand on.
Looks to me like Sessions is actively trying to make sure that the mj black market in California will be viable for years to come.
Could Sessions get around Rohrbacher-Farr by using Civil Forfeiture?
Appoint an Anti-MJ federal prosecutor to California, who seizes the assets of dispensary and use those proceeds to prosecute without using any Federal Funds. This would kill the state-legal market and allow Sessions to go after the black market because it wouldn't comply with state laws.
Random Commenter — Or some enterprising private firm could maybe civil RICO the market to death.
What is Jeff Sessions smoking to think this is going to go over well?
Cory Gardner has promised to put a hold on all DOJ nominees until Sessions backs off https://twitter.com/ABC/status/948978692562153472
I don't think Popehat is being helpful by saying "welp the laws we had were already broken, so taking two steps back is no big deal right?"
The fact of the matter is that federal marijuana laws are completely arbitrary and inconsistently applied – This guidance does not help things in the slightest.
1) Popehat understands the distinction between recreational and medicinal use, but seems to think that the protections of the Rohrabacher-Farr amendment are "good enough" even though they only specifically pertain to medicinal use.
2) Popehat seems to emphasize the individual user quite a few times. Just because it is "unlikely" that you will be prosecuted, doesn't make it ok. Over the course of the Clinton/Bush era, there were still hundreds of thousands of federal marijuana arrests, which represented a tiny fraction of total users. Minorities made up a very disproportionate number of those arrests.
Just because a law is too poorly enforced and too wide-reaching to get you, doesn't make it any better.
3) Federal marijuana laws can be used as a way to target specific individuals in legal states, for political or other reasons. This guidance only serves to enable these types of actions.
4) Small-time users depend on the high volume producers and every individual that is a part of the supply chain. Trying to say "everything is ok as long as you don't exist too far up the supply chain", is again, nonsense.
5) Not only that, but any business/vendor that touches the supply chain in any way is affected by this law. Are you a bank that wants to take the risk of handling the money of a perfectly state-legal marijuana dispensary? Better have the ACLU on speed dial.
I agree that the sky isn't falling – But Popehat's metric for concern seems to be limited to personal-use prosecutions maybe/probably being not on Sessions agenda (and even this isn't guaranteed).
I think there is plenty of room for outrage here. We shouldn't be taking two steps back into the nonsense status quo of federal marijuana laws. We should be looking to reform federal laws so they can start making sense.
It is interesting to me that Sessions wants to push this sort of agenda now – It seems to be a pet project of his. Republicans would rather leave the issue to the states at this point, Libertarians don't want the federal government involved at all, and Democrats want to push for full legalization.
Apparently I wrote a lot of stuff that I don't remember writing.
@SocraticGadfly
It is my understanding that the FDA has no responsibility for Cannabis scheduling (but has in fact recommended several times that cannabis be removed) and it's determination is made solely by the DEA. If you have evidence this is not the case I'd like to see it.
That the DEA refused to reschedule Cannabis was hardly surprising regardless of who was president as I don't think the president has direct control over DEA policy just like the president has no direct control over the FBI (for very good reasons). Cannabis scheduling will only be solved by long over due congressional action. That Congress gave DEA this scheduling ability in the first place is the problem, law enforcement should never be able to decide what's legal or not, especially where they get to keep any money through civil forfeiture. DEA has a direct incentive to illegalize as many things as possible so they can utilize civil forfeiture against as many people as possible.
Civil forfeiture turned the war on drugs into a profitable endeavor and then gave the enforcers the keys to decide what's illegal. Is anyone surprised that turned into wide spread abuse? Or that DEA refuses to reschedule Cannabis?
I'm not.
Been partaking too much of the matter at hand?
Trent: The DEA relies on FDA recommendations. So,the FDA technically is not officially responsible, but, scientifically (in theory) it's very responsible.
So, can anyone tell me which Amendment gives the Feds any authority at all to regulate drugs of any kind? The closest I've found is the 18th, but that's about alcohol and was repealed by the 21st.
If we actually followed the Constitution, the ATF and DEA would not exist, and this whole situation would be a non-issue, but this seems to be the one thing in the past year that Sessions won't recuse himself from. (rolleyes)
Sooo true. If only more people were prepared to complete the full sentence.
Also, 哈哈哈哈
Ken, are you of the opinion that nobody who doesn't approve of all the laws that currently exist should become a policeman or a prosecutor? And that the moment a law is passed that a policeman or prosecutor disapproves of they should resign?
Or are you of the opinion that policemen and prosecutors should only enforce those laws they approve of? If so, isnt' that the exact opposite of the rule of law?
If neither of those positions represents your opinion then I'd like to hear a third option.
(Way back when going into law was a serious possibility for me, one thing that dissuaded me was precisely this question. As a prosecutor I'd be throwing people in prison who I didn't think belonged there, and as a defender I'd be putting people on the streets who I didn't think belonged there. And as a civil lawyer, unless I could choose all my own cases I'd be helping people rip others off.
More recently this problem induced me to get myself off a jury by talking about nullification. Normally I would shut up about that, so I could help free an innocent person, if that's what the defendant turned out to be in my opinion. But in this case, from the way both sides were talking during voir dire, I had a strong feeling that this was a dangerous person who belonged in prison, but that the evidence that he'd done something bad was not going to be presented, and we were going to be asked to convict him instead on a charge I believed to be wrong and unconstitutional. If it came to that I'd have no choice but to vote to acquit, and then bear the moral responsibility for his next victim's injuries, so I deliberately got myself dismissed instead.)
I kinda wish this lawsplainer explained how the feds get jurisdiction on entirely-within-the-state operations. I don't understand how/why that is, though obviously it is…
If a person has a business within a marijuana-legal state, where they grow their own plants, and they sell to state residents, and the resident doesn't leave the state…how is that a federal issue (and I'm not asking to be argumentative, I really don't understand how that works because I am not a lawtalking guy).
@Grifter: It's the Commerce Clause. Seriously.
Gonzales v. Raich, 545 US 1 (2005)
Yes. I'm not proud of it. I prosecuted people for involvement in marijuana cultivation and distribution operations — operations involving 500 plants or more. It was wrong, and I'm actually ashamed of it.
Kudos. Uncoerced admissions of wrongdoing and shame are too rare.
I disagree with the implications there. The attorney general and the President both have ethical duties to enforce federal laws to the best of their ability, even (especially) when they disagree with those laws. The alternative, that they can retroactively veto laws by refusing to prosecute, is the stuff of banana republics.
To the extent that the Ogden and Cole attempted to provide 'legal status' to marijuana, they should be condemned.
Ah, someone finally got to asking the Big Constitutional Question…. and got Raich in reply? Wow, either the worst or second worst Supreme Court decision in our lifetime… Holding that intrastate non-commercial consumption of marijuana was somehow interstate commerce? Compared to that, everything else being discussed here is just rearranging the deckchairs on the Titanic.
Ken: "…the states can't immunize people from federal prosecution". …,
… but JURIES CAN.
Jury nullification goes well beyond the particular case. Every instance discourages other prosection and gives support to anyone being offered a "deal".
There's more: lots of criminal investigation depends on citizens cooperating. The general attitude that LEO is not looking after the interests of the public will cripple that aspect.
So the big argument is about how to not enforce a democratically passed and enacted federal law. Why not pass a different law? Isn't that what legislatures are meant to do, occasionally? Oh … it probably wouldn't pass? Well, we just need to find a way to get around these silly democratic constraints. ;)
Milhouse (at 2:01 am), asked of Ken, "are you of the opinion that nobody who doesn't approve of all the laws that currently exist should become a policeman or a prosecutor? … [or] are you of the opinion that policemen and prosecutors should only enforce those laws they approve of? If so, isn't that the exact opposite of the rule of law?"
Only following orders, Milhouse?
You touched a nerve by bringing up "rule of law". The Rule of Law is a protection for the people against the lawless acts of bureaucrats and cops. It is not a mill for the government to grind up the people. Just as jurors can nullify bad laws, the individual acts of police and prosecutors can too.
Why have a conscience if you are not going to use it?
@Kirk: Grifter asked how they justify it. Raich is the answer to that. I 100% agree it's stupid.
From Raich:
"..the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity."
Can't every see, immediately, what is wrong with this–and further, how contemptible wrong it is?
The words "or/and things affecting commerce" are notably absent from the commerce clause. Once the actual buying and selling, or sending and receiving, from one state to another has ended, the federal government has no more legitimate authority than you or I do.
Wiki cites Oakland Buyers Cooperative as well as Raich for court cases establishing constitutionality. It should be noted that Thomas, arguably the justice most susceptible to a states' rights argument, wrote the opinion, which, with concurrence, was unanimous: https://en.wikipedia.org/wiki/United_States_v._Oakland_Cannabis_Buyers%27_Cooperative
The constitutional issue is otherwise arguably addressed by all states passing the Uniform Controlled Substances Act foisted on them by the DOJ, under the claim that the states needed to do so for state-level implementation of the Controlled Substances Act which the feds claimed in 1970 was necessary for international law and treaty obligations, even if some states have later, in essence, equivalent to abrogating being a signatory to a treaty, passed medical or full legalization laws.
https://en.wikipedia.org/wiki/Controlled_Substances_Act
Kirk Parker says January 5, 2018 at 9:01 am:
Raich relied on the precedent of Wickard v. Filburn, 317 U.S. 111 (1942), which may not have been the worst SC decision in your lifetime, but may have been within the lifetime of some who comment here.
Yeah if all states pass something like the USCS because it's the will of their voters… Well MPAI but that's the system we have, so I have no issue with that.
@SocraticGadfly
No They don't, the DEA routinely ignores FDA recommendations to the point I'd argue the FDA's input isn't even considered in DEA scheduling decisions. Maybe the law says they are supposed to, I won't dispute that, but the evidence is clear that the DEA doesn't care what the FDA says and isn't required to care (they don't have to justify going against the FDA recommendation). Otherwise the DEA scheduling decisions would not so often go directly against FDA recommendations.
AFAIK the FDA has been recommending Cannabis be removed from Schedule 1 for more than a decade. Schedule 1 prevents all research without a waiver from DEA and the FDA has wanted cannabis to be appropriately researched since Clinton was president. If the DEA can uniformly ignore the FDA recommendation, that recommendation doesn't mean anything and the DEA has sole decision authority. That is the reality on the ground.
The simple fact is that scheduling decisions should not be up to law enforcement. That's a policy error of unmitigated proportions and practically guarantees abuse of the scheduling system.
But I'm one of those idiots that thinks the war on drugs (ie Prohibition 2.0) was a mistake, is a continuing mistake and should be eliminated through broad legalization. while leaving taxing decisions up to local authorities.
One wonders whether a federal prosecution would lie against state officers in charge of regulating MJ for personal use, for example a charge for conspiring to do the RICO and increase the market for a schedule 1 drug?
Kirk, that's why I used "foisted" …
Trent … I'm just reporting a mix of law … plus that DEA asked the FDA for its input in 2016. (Almost typed "last year.") Yes, the DEA may say "no" even if FDA had said "yes."
And, in DEA's most recent "no" to moving it off Sked I, it said it gave "enormous weight" to the FDA saying don't move it off Sked 1.
(So, I'll stick with saying both agencies are at fault.)
https://www.npr.org/2016/08/10/489509471/dea-rejects-attempt-to-loosen-federal-restrictions-on-marijuana
Wiki cites Oakland Buyers Cooperative as well as Raich for court cases establishing constitutionality. It should be noted that Thomas, arguably the justice most susceptible to a states' rights argument, wrote the opinion, which, with concurrence, was unanimous: http://bit.ly/2CJF9Ny
It looks like Jeff Sessions might be replaced soon. Does this policy disappear with Sessions?
@Dave Crisp:
Thank you!
@James Pitcherella
Given that the likely replacement (if there shall be one) would be Scott Pruitt, the man who made a living off of suing the EPA at every opportunity before he was appointed to dismantle it… I don't know if that's better or worse than Sessions in charge.
@OldCurmudgeon
Yeah, like enforcing Obamacare! Because effectively zeroing-out the penalty for failing to purchase health insurance isn't an attempt to retroactively veto of the ACA. Tell me how the banana isn't a banana with that one.
As for the topic at hand, who's to say that the previous ones didn't, as even you admit it's "to the best of their ability?" Their duty isn't to enforce individual laws to the best of their ability, it's to enforce a body of laws, with limited resources, to the best of their ability. Federally regulating against a state-regulated drug marijuana regime can be a pretty low priority when tens of thousands are dying from opioid-type drug crimes. And that's before you expand into all other sorts of crimes.
seems the honorable senator from Colorado disagrees with this entire thread (and also feels the dishonourable mr sessions lied to him during his confirmation hearings):
I was wondering the same thing. In US v. McIntosh, the court cautioned:
"The government had authority to initiate criminal proceedings, and it merely lost funds to continue them. DOJ is currently prohibited from spending funds from specific appropriations acts for prosecutions of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow"
OR the DOJ could find a more creative source of funding that isn't covered in the omnibus spending bill, the surplus balances of the Asset Forfeiture Fund:
"Super Surplus. 28 U.S.C. § 524(c)(8)(E), provides the Attorney General with the authority to
use the AFF’s excess unobligated balance remaining at the end of a fiscal year without fiscal year limitation, for any Federal law enforcement, litigative/prosecutive, and correctional activities, or any other authorized purpose of the Department.”
https://oig.justice.gov/reports/2017/a1805.pdf
I don't know about that. Maybe in your state it is thus. Here in Florida, we have a Republican legislature (both houses), a Republican governor, and a Republican supreme court. With mostly Republican judges down the line. It's essentially a one-party state, with all the freedom and flexibility you would expect.
Add to that a lack of citizen legislative initiative provisions. The only way the public can effect what might normally be statute law is to stuff it in the Constitution. This results in a lot of stupid stuff in the Constitution. For instance, the Constitution regulates accommodations for pregnant swine. A sensible person could be forgiven for thinking that I am making this up.
The legislature is as responsive to public wishes as would be expected when there is one party entrenched in power. As a result, in Florida, we have marijuana enshrined in the Constitution. Again, a sensible person couild be forgiven for thinking that I am making this up.
In our state, the Republicans are "classic" or 1860's style. They believe that wisdom flows down from the top. Originally, from Washington, but also from Tallahassee. Thus you have statutes barring local regulations of things like rentals, certain land uses, and other things that occasionally surprise city and county politicians. At best you might get a nod toward state's rights, but as classic Republicans you can count on them to favor centralized control.
Off topic: Do you think "stable genius" is some kind of pony whistle?
The real problem is a Congress totally out of touch with popular will. Polling data shows considerable public support for marijuana legalization, and state after state has done just that. Congress needs to fix this problem by repealing the federal laws against marijuana, at which point Sessions' wishes simply won't matter. They won't.
So… Eric Holder blatantly politicized the DOJ and told his attorneys not to prosecute some of the laws on the books, because his political party didn't like those laws…
…and Jeff Sessions is simply removing those special exceptions and letting the attorneys return to the "established principles of federal prosecution".
I want Congress to legalize marijuana, but this sounds like a win for the separation of powers and lawfulness of the government.
@Ineth
Because prosecutors and the DOJ never ever made decisions about what to prosecute and what not to before Holder?
@Ineth:
That's just silly. DoJ sets policy priorities and guidelines about resource use all the time, under every AG.
So it's a bit of both then?
It's technically the way it *should* be done…
…but nobody's ever bothered to do it the right way before.
Sounds like the government as usual.
I'm confused why the party that is for small government is sticking its nose into literally everything.
Jordan says January 8, 2018 at 4:33 pm:
Perhaps looking at various philosophies of government policy from the point of view of their advocates would allay your confusion. It's independent of party.
Small government: Government should not stick its nose in to my and my friends' business, just into everyone's else business.
Tax reform: Don't tax him. Don't tax me. Tax the guy behind that tree.
Government subsidy and expenditure reform: Pay me. Pay him. Don't pay them.
Government bureaucracy and licensing reform: Reduce bureaucracy and eliminate red tape. Except for the red tape and bureaucracy that keeps competitors from entering my line of business.
Now that you see how it works, I'm sure you can make up a few of your own.
Cause their claimed branding has never been accurate, that's true of every political party. They claim to be small government the reality is they only want small government in certain areas, in social areas they are absolutely happy to thrust government into peoples pants and bedrooms and what they ingest.
It's no different than claiming to be about balanced budgets and fiscal responsibility and then passing a $1.5 trillion tax cut that's going to destroy the federal budget, explode deficits and borrowing, indenture this country to foreign adversaries and do long term damage to the fiscal stability of this country.
@Czernobog: I agree. Although some might say that if the ponies remain stabled, we'll be fine.
Personally, I don't trust that President Trump has the wisdom to leave the ponies stabled. And even if he does, what of his successors?
We have to remember that if you give the government power to use ponies against its opponents, then when those opponents take power, they'll have access to use those same ponies.
Wasn't it George Washington who said:
Streisand effect dictates this will draw more attention to the need to legalize marijuana at the Federal level and if Sessions was attempting to fight against that, he made a huge mistake by accidentally increasing the odds.
After all, this is something Trump can trade to the Democrats now, and there are deals to be made.
We likely won't see action on federal legalization/de-criminalization until there is a large enough quorum of states that have legalized. I give it anywhere from 5-10years at the going rate, in particular they need at least half of dozen eastern states to legalize to shift opinion. Right now most of the legalization has been western and it's not having a large impact at the federal level because it's so far from DC.
If a bunch of the New England states or a couple big eastern states like NewYork and Florida did it then opinion would likely begin to shift in the corridors of power. It's probably going to require another decade. I've personally been predicting since the 90's that legalization would probably become widespread in the 2030's because the bulk of the baby boomers voting block would be overwhelmed in numbers by the GenX/GenY by then. Unless legalization accelerates on the eastern seaboard that's probably still on track.
Trent – good thinking and I broadly agree; my point is more actions like this can be the push that causes NY and FL to legalize, which accelerates the timetable.
On a slightly related topic, is there a direct link between Popehat and the 'Space Ponies' achievement on Steam for the game 'Sins of a Solar Empire:Rebellion'?
Inquiring minds want to know.
"It's no different than claiming to be about balanced budgets and fiscal responsibility and then passing a $1.5 trillion tax cut that's going to destroy the federal budget, explode deficits and borrowing, indenture this country to foreign adversaries and do long term damage to the fiscal stability of this country."
I agree that is a problem, but somehow I am guessing you had no issue with the $7.92 trillion the last guy ran up.
I am not Trent, but I dislike all overblown budgets, no matter whether the money is being blown left or right.
But compare individual policies, instead of all 8 years vs. 1 policy, and it starts to stand out.
$858 billion: Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act (2010)
$1455 billion: Tax Cuts and Jobs Act (2017)
People like to blame Obama for that but I don't blame any president for spending budgets unless they had an oversized input in the spending and in this case Obama didn't have any impact on spending pretty much at all.
But more in depth, of the $7.2 trillion roughly. $2 trillion was the result of the Bush tax cuts long term impact to tax receipts, this would have actually been far worse had Obama not blocked in the middle of his term the extension of the Bush tax cuts on the top rates, without that change IIRC it would be a trillion dollars higher today. Another $2 trillion was the result of the drop in tax revenues that resulted from the mass unemployment that was already underway when Obama took office and the Obama had nothing at all to do with anyway, the recession started under the previous president. Neither of these are spending, they are cuts.
That leave about $3 trillion you can actually blame spending for, and the bulk of it was, Iraq war funding, TARP and the stimulus funding accounting for 2.8 trillion overall. The TARP funding was passed during the Bush administration, and actually was paid back in full and made the government a profit of nearly $200 billion. That leaves stimulus at $800 billion, the estimates I've seen from the research point to the stimulus arresting what would have been a much more serious fall. Some of the research indicates that without that stimulus unemployment probably would have reached 20% instead of the ~10% it bottomed out at. Personally I think the stimulus spending was an incredibly smart economic move to raise the bottom of the recession and by all accounts it worked. And of course the Iraq war spent more than a trillion dollars on something G.W. Bush argued would only cost $100 million when he started it.
Our debt predicament can really be laid at the feet of two primary actions, the first and biggest being the War spending after Bush started two wars and paid for them both on credit, The next largest being the Bush tax cuts which were predicated on revenue which never occurred (and the tax cuts still went into effect), after all, congress and the Bush admin were handed a budget surplus by the outgoing Clinton admin and 1999 Republican congress. Between the two you account for almost half the number you counted and all the spending was put in place long before Obama was even thinking about running for President.
But the Republicans were happy to blame Obama for all of this, and after gaining control of Congress passed the PayGo legislation to prevent runaway spending like this again or so they claimed. The Trump tax cuts are going to initiate PayGo cuts, and make no mistake, now that Republicans are in control they will waive the PayGo requirements and let budgets deficits spiral into oblivion. This has been the plan since the 80's, run up the federal debt then claim the government can't afford to pay the Social Security fund back the $4 trillion it's owed. Then they eliminate medicare and claim they can't pay for that either. They may even try to do it this year. after all Ryan has been talking about it non-stop since the tax cut bill was passed.
Republicans have been spiraling budget deficits for more than 20 years now and people buy into the propaganda about fiscal responsibility. They aren't the party of fiscal responsibility anymore, they are the party of Tax Cut and Spend. They already did the cut with the Trump Tax cut, when they waive PayGo they will prove the spend part. And the majority of people out there still won't admit what's been reality since the Regan administration.
I wish you had given at least a nod to the Tenth Amendment, which would seem to make the Supremacy Clause moot. How is it possible for the federal government to stick its nose into drug prohibition when the Constitution grants no such power and specifically states that no power not explicitly granted shall be exercised?
"How is it possible for the federal government to stick its nose into drug prohibition when the Constitution grants no such power"
Section 8 of the Constitution is the clause that has been given since 1914: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Hey Ken, thanks for the lawsplainer, and for being willing to own you were wrong. As a paralegal in private and federal practice, I found that an attorney willing to admit an error was a rare thing. Thank you for validating this is a good place to watch for info, lulz, and restoring my faith in humanity post law career.
-Tirani
Irritatingly, the potheads decided to bring a *medical* marijuana case, of all things. That decision forced them to argue Wickard and not Lopez. And, obviously, SCOTUS overturning Wickard was never likely.
If the potheads could think strategically, they would have found some old lady who grew it for aesthetic reasons, even if they needed to stage a sham prosecution for standing.
Because they issued the Ogden and Cole memos…
The administration is setting up a trifecta:
Felony convictions for users, growers, distributors, bankers, etc…
Get you to
1. Disenfranchisement of convictees. What party do you think that’ll effect most?
2. Asset forfeiture. $$$$$$ is all that needs said.
3. Private prisons. When that middle class tax cut runs out, they’ll have some more $$$ to give to one of their favorite contributors.
Or, am I just being negative and paranoid?
The administration isn't 'setting anyone up' for anything; they're properly doing their job i.e., to faithfully execute the country's laws. Or in their words, "I’m Attorney General of the United States. I don’t have the authority to say that something is legal when it is illegal—even if I wanted to. I cannot and will not pretend that a duly enacted law of this country—like the federal ban on marijuana—does not exist. Marijuana is illegal in the United States—even in Colorado, California, and everywhere else in America. "
If you want that to change, complain to Congress. Obama-style retroactive executive vetos are poisonous to our system.
@OldCurmudgeon
Spare me!
It is less "poisonous " to our system for an official to publicly announce that a law will not be enforced than it is to privately refuse to do so while claiming to follow the law.
The appointees of the current administration have generally been chosen for exactly that characteristic you find so disturbing – the ability to pretend that a duly enacted law of this country does not exist.
Scott Pruitt anyone? Our new "civil rights" (now "christian rights") department?