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February 5, 2009

Is hope and change coming to the issue of medical marijuana?

The Washington Times has an interesting report on a high-profile drug reform issue in this article, headlined "DEA continues pot raids Obama opposes:President vowed to end policy." Here is how it starts:

Drug Enforcement Administration agents this week raided four medical marijuana shops in California, contrary to President Obama's campaign promises to stop the raids.

The White House said it expects those kinds of raids to end once Mr. Obama nominates someone to take charge of DEA, which is still run by Bush administration holdovers. “The president believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind," White House spokesman Nick Shapiro said.

UPDATE: Over at The Volokh Conspirary, this news gets some significant love in this notable post by David Kopel:

Hurray for President Obama! The White House affirms that he will end the Bush/Clinton policy of raiding medical marijuana providers who are operating within the parameters of state law. A victory for patients, for the Tenth Amendment, and for responsible use of federal law enforcement resources, as Mike Krause and I argued in 2001.

February 5, 2009 at 11:40 AM | Permalink


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"The president believes that federal resources should not be used to circumvent state laws"

Does this mean that the DOJ will impose a categorical rule prohibiting a U.S. Attorney's Office from indicting a case (including death cases) because the it does not like the likely or actual state sentence (or the lack of a death penalty in a state)?

Posted by: DEJ | Feb 5, 2009 1:22:28 PM

You know, you just can't do this. While they can wink wink nod nod on some stuff, the bottom line is that you cannot simply say that you're going to blow off federal law in one state and not others.

Posted by: federalist | Feb 5, 2009 1:48:49 PM

I wonder if "federalist" sees the irony of his statement.

Posted by: Zack | Feb 5, 2009 3:29:39 PM

Zack, snark is a poor substitute for erudition. Those of us who believe in the rule of law can certainly wonder how what is supposed to be a unitary federal law should be so nakedly selectively enforced.

There really is no irony in my statemnt. Of course, I am not surprised by your ignorance, after all, wasn't it you who tried to serve up trite nonsense about fighting the last war when talking about the war on terror? I seem to recall a stunning lack of knowledge about basic historical facts. And that's the problem, snark is easy, it's cute, but it's ultimately intellectually lazy if overdone.

Posted by: federalist | Feb 5, 2009 7:07:42 PM

Actually, I believe that thirteen states have decided to "blow off" federal law in one form or another. Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.

Lots of fodder for the legal profession.

Posted by: beth | Feb 5, 2009 7:50:50 PM

The issue beth is not states blowing off federal law, but the feds blowing off (and trumpeting the bow off) federal law. Federal law is supposed to be unitary.

I suspect you guys get this, but don't really care about the "rule of law".

Posted by: federalist | Feb 5, 2009 8:10:35 PM

Got it. I just misread your sentence. Thanks - Yes it is a problem. I care about the "rule of law" it is just often difficult to discern it.

Posted by: beth | Feb 5, 2009 9:22:25 PM

Beth, it's much easier to pontificate about adherence to the "rule of law" when you don't know much about it. It allows you to assert all your personal political preferences under its mantle.

Federalist, I believe there is very recent precedent for the Executive's prerogative to ignore enforcement of federal law.

Posted by: DK | Feb 5, 2009 11:43:56 PM

Here is a hint for you "federalist": crime and the accordant police powers are traditionally considered to be the domain of the states (See, US Const. Amend. IX, X). The use of federal law to undermine the policy decisions of the states in one of their traditional domains (criminal law) in cases that are primarily local matters is very problematic for a lot of reasons - not the least of which is that it destroys federalism. Federal criminal law should not be used to go after local crimes just because the persons in power at the federal level disagree with the policy decisions made at the state levels. That makes a mockery of our federal system of democracy - and ignores the Ninth and Tenth Amendments to the U.S. Constitution. It also raises a very strong danger that federal power will be abused solely to attack the ability of states to govern as they see fit - as it was with the California medical marijuana law solely to undermine the democratic decision of a state. Just because you approve of the results, doesn't mean that the methods are not bad and dangerous to the very foundation of our country. Don't be surprised when in the future that attitude of approving expanded federal law enforcement authority turns around and bites you.

Posted by: Zack | Feb 6, 2009 11:19:28 AM

Gee, Zack, thanks for clearing up the Ninth and Tenth Amendments for me. I missed that day of law school.

In any event, your post really misses the point. The issue is the announced selective enforcement of federal law based on the state in which a violation occurs and the propriety thereof.

I'd leave it at that, but you've really led with your chin, and the ex-boxer in me just cannot resist.

Let's start at the beginning. Here's the statement from Obama's spokesman: “The president believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind,"

It's important to note what this statement does not say. It does not say that Obama believes that the federal law outlawing marijuana is unconstitutional. Instead, it creates this odd quasi-veto power of a state over enforcement of an otherwise valid federal law. And that is somewhat in tension with the Supremacy Clause.

Note I said, "otherwise valid" federal law. Of course, the pot laws are valid (the Supreme Court has said so and the quote from Obama spokesman clearly presupposes that federal law is valid). Now, you may disagree with that conclusion, and that's fine, good faith arguments can be made that it is beyond the Commerce Clause power of the federal government to ban marijuana or that the Constitution grants people the right to marijuana for medicinal purposes. But that's not your argument. You instead make policy arguments about the propriety of federal intrusion into concurrent areas of jurisdiction based on appeals to local democracy and federalism, and those are fine too. Much ink has been spilled over these policy arguments (which basically say that some federal exercise of its power is a bad idea, irrespective of the Commerce Clause power). But I didn't get into those arguments (so I don't know where you got the "you approve of the results"). But these policy arguments don't address my point, namely the selective enforcement of an assumed valid federal law based on state lines.

It may well be that individual states should be (by federal silence) given sole say on whether marijuana should be legal within their borders. The problem, though, is that federal law is not silent. And, in my opinion, it's problematic to openly say that a law that is supposed to be unitary is to be enforced in a piecemeal manner.

DK, there is a difference between the Executive allocating limited resources and simply stating that within a certain state federal lawbreakers have free rein. Note too my original post, where I said they can wink wink. My statement that they "just can't do this" was not meant to convey the idea that what they;re doing is illegal, rather that it just is really bad form. Apologies for any confusion, which is my fault.

Posted by: federalist | Feb 6, 2009 1:40:16 PM

Federalist - what you are continuing to ignore is that while the federal government could go after and prosecute every drug offender, they have never taken that step. With the exception of border, enforcement at sea, and airport arrests, almost all investigations in drug cases and arrests on drug charges are done by the states. Generally the feds only get involved in drug cases when requested by the state government (or in a case like in one of the counties where I used to practice criminal where numerous members of the local Sheriff's Department were reselling the drugs that they seized). In any case, its not like federal enforcement of drug laws were very uniform - the district where I live (the Eastern District of Virginia) is a perfect example. Lots of drug cases filed - almost all of which have come from two jurisdictions - Richmond and Norfolk - because the state prosecutors (and juries and judges) in those areas are perceived (accurately, I might add) as being soft on drug crimes.

There is no evidence at all that Obama does not support universally enforcing the federal drug laws in all of the states. In fact, the historical evidence of federal enforcement of drug crimes suggests that they have never been universally enforced throughout the United States. If you had ever actually practiced law, you would know that. You are just making a reflexive political attack to attack anything done by a Democrat with no foundation in the facts.

Posted by: Zack | Feb 9, 2009 10:02:40 AM

Zack, thanks for clearing that up. I didn't know that the feds have limited resources and don't prosecute evey drug offender. I also didn't know that in a nation of 50 states and 300 million people that enforcement of federal law is not uniform throughout.

Now that we've cleared up my ignorance, we can move on. What I am complaining about is not a lack of rigid uniform enforcement--rather an announced enforcement-free zone based on state law. That's a lot different from the selective enforcement that inescapably happens in a human system with limited resources.

Posted by: federalist | Feb 9, 2009 10:31:43 AM

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