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December 6, 2012

New report on feds' on-going debate over response to pot legalization

The New York Times has this notable new article reporting on the debate within the Obama Administration concerning how to respond to pot legalization in Colorado and Washington.   The piece is headlined "Administration Weighs Legal Action Against States That Legalized Marijuana Use," and here are excerpts:

Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations. 

Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.

Marijuana use in both states continues to be illegal under the federal Controlled Substances Act.  One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law.  Should the Justice Department prevail, it would raise the possibility of striking down the entire initiatives on the theory that voters would not have approved legalizing the drug without tight regulations and licensing similar to controls on hard alcohol.

Some law enforcement officials, alarmed at the prospect that marijuana users in both states could get used to flouting federal law openly, are said to be pushing for a stern response.  But such a response would raise political complications for President Obama because marijuana legalization is popular among liberal Democrats who just turned out to re-elect him....

Federal officials spoke on condition of anonymity because they were not authorized to discuss the matter.  Several cautioned that the issue had raised complex legal and policy considerations — including enforcement priorities, litigation strategy and the impact of international antidrug treaties — that remain unresolved, and that no decision was imminent.

The Obama administration declined to comment on the deliberations, but pointed to a statement the Justice Department issued on Wednesday — the day before the initiative took effect in Washington — in the name of the United States attorney in Seattle, Jenny A. Durkan. She warned Washington residents that the drug remained illegal....

One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state.  The department could then obtain a court ruling that federal law trumps the state one.

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. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be “severed” from those eliminating state prohibitions — or whether the entire initiatives must be struck down.

Another potential avenue would be to cut off federal grants to the states unless their legislatures restored antimarijuana laws, said Gregory Katsas, who led the civil division of the Justice Department during the George W. Bush administration.  Mr. Katsas said he was skeptical that a pre-emption lawsuit would succeed.  He said he was also skeptical that it was necessary, since the federal government could prosecute marijuana cases in those states regardless of whether the states regulated the drug.

December 6, 2012 at 10:30 PM | Permalink

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"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. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be “severed” from those eliminating state prohibitions — or whether the entire initiatives must be struck down."

Certainly not my area of expertise, but my understanding of preemption is that it simply means that federal law trumps any conflicting state law. I don't know how the federal government can file a suit to enjoin states from setting up a regulatory structure. Nothing about Washington's or Colorado's authorization of the possession, use, distribution, etc., of marijuana would interfere with the federal government's power to prosecute people for those activities. Also, I would point to 21 USC s. 903:

"No provision of this subchapter [criminalizing substances such as marijuana] shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."

Frankly, I cannot understand the federal government's consternation. Nothing that Colorado or Washington has done is interfering with the feds' ability to enforce the Controlled Substances Act. If anything, they've just given the federal government an excuse to hire more prosecutors, more DEA agents, more prison guards, and more defense lawyers.

On the other hand, they could exercise a little restraint. After all, it's not like Washington and Colorado are bringing about the end of the world. If nothing bad happens, then maybe the federal government will have reason to rethink the war on drugs; it might save a few dozen billion dollars a year. Isn't that a good thing?

Posted by: C.E. | Dec 7, 2012 12:36:19 AM

Also, I love this part: "One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state. The department could then obtain a court ruling that federal law trumps the state one."

Really? Their strategy might be for a lawyer--or worse, a pro se defendant--to file a frivolous motion, so they could get a court order stating the blindingly obvious? I don't think the person who leaked this to the NYT was a lawyer.

Posted by: C.E. | Dec 7, 2012 12:43:38 AM

"Really? Their strategy might be for a lawyer--or worse, a pro se defendant--to file a frivolous motion, so they could get a court order stating the blindingly obvious? I don't think the person who leaked this to the NYT was a lawyer."

I agree. Even the present DOJ isn't that stupid. The correct DOJ enforcement strategy is to find a defendant doing large amounts and who is violating the new state law, but about whom the state has done nothing.

In other words, the federal strategy here should be based on its strategy against the phone "medical" marijuana "clinics" DOJ has been going after in California. Some of these clinics openly operate simply as drug dealers, with little pretense of any medical exam (or medical interest, for that matter).

DOJ should (and I'm quite sure will) pick out a fat, unsympathetic target to begin with, not a skinny, sympathetic one. This is really too obvious to have to explain.

Posted by: Bill Otis | Dec 7, 2012 9:27:09 AM

...make that "phony" medical marijuana clinics.

Posted by: Bill Otis | Dec 7, 2012 9:28:50 AM

C.E.,

There are several types of preemption, express, implied and field. A bstate law can also run afoul of preemption based on frustrating the manifest intent of Congress. I would think that taking positive steps to try and collect tax money on what the feds consider contraband would easily meet that test.

Although if there were any cases directly testing the state medical marijuana setups (beyond trying to use it as a defense to a federal charge of possession or distribution) and the states survived preemption there I would agree that Washington and Colorada would have a reasonable chance. I am just not aware of any such cases.

Posted by: Soronel Haetir | Dec 8, 2012 12:49:08 AM

Dorf on Law had a blog post related to the preemption issue and Prof. Dorf believed SH's first paragraph was a reasonable case but Marty Lederman in comments questioned the matter. I think it's something of an open question but that it would be gratuitous for the Administration to force the issue.

I doubt they will use some petty offense to force the issue. As Bill notes, in his usual Bill way, there are easier targets here. The question then becomes just how broad the effects will be. The new laws set up regulation of distributors, even small scale ones. It would be ironic that attacking big dealers will in effect result in less state oversight of distribution.

Personally, this is a key reason I see for legalization even if we take the Bill Otis sentiment of de facto legalization with some small "token" efforts of prosecution. If there is DFL anyway, makes sense to regulate it to protect the people who involved. The only concern there is that instead of just allowing risks to unregulated use and distribution now, legalization will greatly expand it so the gains to health and safety will be overwhelmed. If so, it seems "de facto legalization" leaves something to be desired.

Posted by: Joe | Dec 8, 2012 10:50:29 AM

Joe --

I'm afraid you're a little naive. There isn't going to be any actual regulation because none was intended to start with. The regulation language was only added in order to make the measure seem reasonable and attract the votes of middle-of-the-road voters. But the people actually running the show don't believe in regulation. They believe the state is a monstrous leviathon and that people should just be let alone to do their own thing. Regulation is for suckers.

There's going to be about as much state regualation as there is in California for the so-called "medical" dispensaries. The "Compassionate Use Act" promised regulation, but it's a fraud (and was so intended). I doubt there's a single pothead in the Golden State who doesn't know that you just have to go through some fake "exam" (if even that) to get your "medical" card.

Hyping "regulation" is nothing more than a PR ploy to provide phony assurances. I think you might be the last man on earth who takes them seriously.

Posted by: Bill Otis | Dec 8, 2012 12:31:02 PM

There is regulation with medicinal marijuana, including in states other than California. These states might not be as easy targets, perhaps, but such regulations count too. Likewise, non-pot prescription drugs are regulated. The abuse of the system doesn't make the regulations non-existent. No more than regulation of alcohol is meaningless given breaking the rules. The promise of tax revenue alone is a driver for setting up regulations. As does the eyes of many.

Posted by: Joe | Dec 8, 2012 6:21:40 PM

Bill, you are the one who seems naive about what regulation of the pot business can achieve. This NY Times piece from last February, "Struggling Cities Turn to a Crop for Cash": http://www.nytimes.com/2012/02/12/us/cities-turn-to-a-crop-for-cash-medical-marijuana.html, suggests that in 2011 states and cites collected many millions in tax revenues from legalizing medical marijuana. Having that portion of pot transaction money go to the state --- instead of either going to illegal drug dealers or staying in the pockets of illegal drub users --- probably itself reduces at least a bit of illegal drug activity.

Especially ironic is your assertion here that those favoring treating pot like alcohol view government as a "monstrous leviathon and that people should just be let alone to do their own thing." I had long thought this was the mantra of pro-free-market Republicans who general view regulations as just one tool government uses to try to cripple those simply seeking to turn a profit by providing a product desired in the marketplace.

I am sure you are right that some in the pro-pot camp would like to see little or no government regulation of marijuana at the state or federal level. And these folks are probably among the sizable number in Colorado who voted for Romney and for pot legalization.

Posted by: Doug B. | Dec 8, 2012 9:41:44 PM

Doug --

"Especially ironic is your assertion here that those favoring treating pot like alcohol view government as a 'monstrous leviathon and that people should just be let alone to do their own thing.'"

What's ironic about it? I'm simply repeating what I have seen in the comments section of this blog over and over and over again.

"I had long thought this was the mantra of pro-free-market Republicans who general view regulations as just one tool government uses to try to cripple those simply seeking to turn a profit by providing a product desired in the marketplace."

This is what happens when Democrats -- even relatively open-minded Democrats like you -- try to speak for Republicans. It is of course true that some Republicans favor a totally unregulated market for everything under the sun, including, if one takes their logic to its conclusion (which for understandable reasons they decline to do), child prostitution.

I wonder which Republicans you have in mind. Newt? And how far did he get? Ron Paul? How far did he get? Romney never even hinted that he favors legalization. He's the one who walked away with the nomination (and got 48+% of the popular vote). The guy who got 51% also never hinted that he favors legalization, and it has been his Attorney General who's been going after the California dispensaries -- as well he might, since the idea that they're truly "medical" is a statewide joke.

"I am sure you are right that some in the pro-pot camp would like to see little or no government regulation of marijuana at the state or federal level. And these folks are probably among the sizable number in Colorado who voted for Romney and for pot legalization."

I believe you're just speculating here. My information was that a significant part of Romney's hope that he would carry Colorado was, not that the pro-pot people would vote for him, but that, although they would otherwise ordinarily be inclined towards Obama, would vote for Gary Johnson instead.

Finally, it seems to me that you often wish the Republicans would carry the load for legalization. Why should they? It's still a minority position nationally according to every poll by a neutral organization, and certainly a minority position within the party. Women, whom the Republicans need to court, are more opposed to it than men. And for however that may be, legalization cannot be enacted at the federal level without the Democrats, who control the Senate and the White House. But when they had the whole ball of wax to themselves (January 2009 to January 2011), they made no move whatever to legalize pot. Zip. Zero. Nada.

Who has more real power here? Has-beens like Newt and Ron Paul? Or Holder and Patrick Leahy?


Posted by: Bill Otis | Dec 8, 2012 11:56:07 PM

Joe --

The extent to which Washington state is serious about enforcing the new "regulated" regime was wonderfully illustrated on its very first day.

The principal form of regulation was to be that pot was to be smoked only indoors, not outside. This was immediately flouted by a big crowd in Seattle. The regulators' response was, hey, OK guys, have at it, let a thousand flowers bloom.

Don't believe me? Take a look for yourself: http://www.telegraph.co.uk/news/worldnews/northamerica/usa/9728034/Washington-state-lights-up-as-smoking-marijuana-becomes-legal.html

As I said, the movers and shakers behind the legalization initiative have zero interest in regulation, and stuck in the language only as a ploy. Having secured their victory, their utter unseriousness about "regulation" became cystal clear from the getgo.

Posted by: Bill Otis | Dec 9, 2012 12:29:12 AM

The remarks of Bill Otis are offensive and ignorant on many levels. He suggests all medical marijuana clincs are phony. Never mind the case of people like judges, doctors, and lawyers who have used cannabis to successfully treat a wide variety of serious ailments. Never mind that in states like California, you can't lawfully get marijuana for medicinal purposes without a recommendation from a physician. Does Bill Otis think he knows better than those doctors or that he should be able to interfere with doctor-patient relationships? Again, Bill Otis comes across as quite offensive and ignorant.

Posted by: Humboldt Kush | Dec 9, 2012 4:56:42 PM

You are probably right Bill. Neither the Democrats or the Republicans - as a party, or as individual politicians - will take the lead in legalization. Legalization is being enacted by citizens. When it is a political advantage, politicians will run to the front of the legalization effort.

It's difficult not to recognize the changes that have taken place during the last five years. Prohibition has failed in spite of the billions of government dollars that have been spent to enforce it. It's a bit difficult since so many government jobs depend on prohibition, but the tide is evolving toward more freedom for individual decisions.

Posted by: beth | Dec 9, 2012 6:04:20 PM

Humboldt --

Do you think it might have been more forthcoming for you to reveal that you have a financial stake in peddling this stuff?

Yeah, well, whatever.

"The remarks of Bill Otis are offensive and ignorant on many levels. He suggests all medical marijuana clincs are phony."

I don't recall seeing the word "all" in my description. As to their being phony, some publication wrote this, "Here on the boardwalk of Venice Beach, pitchmen dressed all in marijuana green approach passers-by with offers of a $35, 10-minute evaluation for a medical marijuana recommendation for everything from cancer to appetite loss."

Now let's see if you can guess the right-wing, Puritanical source: (1) Mitt Romney (2) George Bush (3) The League of Decency (4) Ann Coulter (5) the New York Times.

Righto. It's (5). http://www.nytimes.com/2012/10/08/us/california-fight-to-ensure-marijuana-goes-only-to-sick.html

Hey, but do tell, a 10-minute "examination" for cancer by some pitchman on the boardwalk is legitimate "medicine," right?

And the AMA has endorsed smoked pot as a safe and effective medicine, right? Wanna quote where it did that?

"Never mind that in states like California, you can't lawfully get marijuana for medicinal purposes without a recommendation from a physician. Does Bill Otis think he knows better than those doctors or that he should be able to interfere with doctor-patient relationships?"

I think I can spot a scam, you bet. So can you, regardless of what you pretend.

Now if you'll excuse me, I want to head off the the boardwalk to find a "doctor" to take 10 minutes in the front room to establish that precious "doctor-patient relationship" so that I can get some groovy bud, all the better to "relieve anxiety," or, as more commonly referred to, get stoned.

Cities all over the state -- 180 at last count -- are putting the bite on these "medical" dispensaries because they know what you falsely deny, to wit, that they're a fraud.


Posted by: Bill Otis | Dec 9, 2012 6:11:42 PM

beth --

"Legalization is being enacted by citizens."

It is by citizens in some liberal states (Washington and Colorado), while being rejected by citizens in other liberal states (Oregon and California (Prop 19)). It's not even being tried in the red states, the better to avoid some embarrassing losses.

I would think legalization to be a mistake, but that's old news. The point for now is simply (1) citizens cannot disregard federal law no matter what state they live in, and (2) the rule of law cannot survive if people claim the right to obey only the statutes they agree with and disregard the rest. The whole point of having democratically enacted law cannot survive unless those on the losing side right now (but perhaps on the winning side later) have sufficient forebearance and self-discipline to abide by the social contract. There is no such thing as the rule of law when each person who feels strongly enough that he's right licenses himself to do what he pleases.

Maybe Jerry Sandusky really, truly believes that the age of consent should be 10, but until he persuades a majority to agree with him, he's required to behave himself according to CURRENT law, no matter how urgently he feels it's wrong or even oppressive. If individuals call their own shots where the law has already spoken, we don't really have law at all. We have the jungle.

Posted by: Bill Otis | Dec 9, 2012 7:09:19 PM

I know it's settled - marijuana grown and consumed in one state falls under the commerce clause. Of course it's not legal till the federal law is changed. I only said that politicians will run to the front of the line when it is safe for them. Sentiment is changing.

Really Jerry Sandusky does not belong in this discussion. I understand that referencing him gives the impression that those who believe that marijuana should be legal equate morally to those who believe that men should be allowed to have sex with 10 year olds. I don't think you believe it - it's just a heavy boot in a conversation.

The social contract is between two entities - the governed and those who govern. I feel strongly that those who govern need to keep their promise of preserving freedom as well.

Posted by: beth | Dec 9, 2012 11:43:10 PM

hmm very very interesting statement bill!


"The point for now is simply (1) citizens cannot disregard federal law no matter what state they live in, and (2) the rule of law cannot survive if people claim the right to obey only the statutes they agree with and disregard the rest."

Might want to tell your former mover and shaker friends it also applies to them!

If the federal govt can ignore what is plainly required in the constitution Why can't we?

Posted by: rodsmith | Dec 10, 2012 12:03:15 AM

beth --

Jerry Sandusky actually does belong in this conversation. I don't bring him in to suggest that pot legalizers are on the same moral footing as child molesters; no sane person believes that.

Sandusky's relevance is as an illustration of what happens when a person feels like his beliefs or desires are so strong that contrary laws just don't count for him. Once that principle is accepted, there's no stopping point.

Thus, as applied just within the legalization movement, there is no principled way to distinguish between the right of an individual person to decide for himself when he's entitled to do pot -- or his right to decide for himself when to do meth or heroin. You either accept the rule of law, or the "rule" of decide-for-yourself because the individual counts more.

Once it is admitted that there is disagreement among psychologists about what is the correct age of consent, there is no principled way, given the fundamentals of legalizer theory, to dissuade a person from making up his own mind about whether the legislature's designated age of 18 should be followed -- or whether it should be 16 or 14. The legislature could, after all, be acting based merely on old-fashioned prejudice or stupidity.

Once it is admitted that some people have an earnest belief thet capitalism is theft, and the banking system is its rancid, corrupt handmaiden, the do-your-own-thing theory that underlies the supposed "right" to flout pot laws leaves no sound objection to someone's individual decision to rob the bank: The law is mistaken (or corrupt); the individual sees more clearly; therefore he can do what he wants.

Same thing with people who gun down abortion doctors because they are sincerely convinced that doing so will prevent many "murders."

We either have the rule of law, with all its frustrations (now experienced by would-be pot smokers), or we have do-your-own-thing vigilantism. The whole history of civilization tells us that the former, while imperfect or even maddening, is plainly better than the latter.

Posted by: Bill Otis | Dec 10, 2012 9:18:25 AM

Were Bill Otis' disturbing deference and reverence to the "rule of law" widely shared, blacks would still be riding in the backs of buses and white women could be imprisoned for marrying black men.

Child molester metaphors in a discussion about drug legalization? WTF?

Posted by: Anthony Perine | Dec 10, 2012 10:41:08 AM

"rodsmith" makes an excellent point.

Lawbreaking amongst government officials is widespread. Jay Bybee authored torture memos and became a 9th Cir. judge. Bush officials sanctioned torture. Obama officials gave them a pass. Obama officials have carried out due-process-free executions of people, including 16-year-olds.

Despite this, people like Bill Otis urge us to click our heels and get in line.

Bill Otis and his way of "thinking" are the problem.

Posted by: Anthony Perine | Dec 10, 2012 10:47:17 AM

Prohibition Bill --

Do you remember the article that ran on this site not too long ago, about the judge back east who wrote an editorial about the relief he receives from medicinal cannabis? Do you want to put that judge in a prison cell for his admitted use of marijuana? Do you want him to be able to obtain medicinal marijuana easily, or do you want byzantine government regulations to stand between him and a substance that provides relief to him?

Are you aware that the federal government, in collaboration with the University of Mississippi, grows marijuana and furnishes it to select individuals, including individuals afflicted with glaucoma? You'll ignore this fact, because the ramifications of this fact shatter the "rationales" of your strange, authoritarian desire to control what free people want to put in their own bodies.

Do you support perpetuation of the myth that marijuana has no medicinal value? In other words, do you support the perpetuation of the listing of marijuana as a Schedule 1 controlled substance?

Do you fear reefer madness?

Posted by: Humboldt Kush | Dec 10, 2012 11:00:39 AM

Humboldt --

You just walk past the three questions I asked you, but expect me to answer yours.

That's not the way it works. I'm not really intimidated by anonymous potheads.

When I see you give some serious answers, you'll see me give some.

Posted by: Bill Otis | Dec 10, 2012 4:08:29 PM

When there is so much law - "rule of law" is frustrating to many, not just people who would like to end marijuana prohibition. I won't call them pot heads because I am for legalization and do not smoke pot.

Too much government does threaten the rule of law. That is why those who would like to preserve it would like to see less government intrusion, and fewer government employees hired to investigate, prosecute, and incarcerate citizens.

Posted by: beth | Dec 10, 2012 4:20:39 PM

Anthony Perine --

"Were Bill Otis' disturbing deference and reverence to the "rule of law" widely shared, blacks would still be riding in the backs of buses and white women could be imprisoned for marrying black men."

Except that Congress declared that blacks cannot be discriminated against in public accomodations, and the Supreme Court ruled that banning interracial marriage is unconstitutional. Thus my support for equal treatment for blacks is consistent with, not antagonistic to, my support for the rule of law. I mean, you did know that "law" means, e.g., acts of Congress and Supreme Court decisions? Decisions like Heart of Atlanta and Raich. You did know that, didn't you?

By contrast, your support for the every-man-for-himself version of "law" gives comfort to segregationists who, being just as sure that they were right as you're sure that you are, wanted to persist in the old, illegal, discriminatory ways. Did you miss the 1960's?

Fine. You take your allies for "states rights," and I'll take mine for federal supremacy -- which also happens to be part of the Constitution.

"Child molester metaphors in a discussion about drug legalization? WTF?"

I guess you were too lazy (or was it too stoned?) to read the discussion, so I'll repeat it for you:

Jerry Sandusky actually does belong in this conversation. I don't bring him in to suggest that pot legalizers are on the same moral footing as child molesters; no sane person believes that.

Sandusky's relevance is as an illustration of what happens when a person feels like his beliefs or desires are so strong that contrary laws just don't count for him. Once that principle is accepted, there's no stopping point.

Thus, as applied just within the legalization movement, there is no principled way to distinguish between the right of an individual to decide for himself when he's entitled to do pot versus his right to decide for himself when he's entitled to do meth or heroin. You either accept the rule of law, or the "rule" of decide-for-yourself because the individual counts more.

Once it is admitted that there is disagreement among psychologists about what is the correct age of consent, there is no principled way, given the fundamentals of legalizer theory, to dissuade a person from making up his own mind about whether the legislature's designated age of 18 should be followed -- or whether it should be 16 or 14. The legislature could, after all, be acting based merely on old-fashioned prejudice or stupidity. Indeed, there are plenty of peope who say just that. Are they entitled to act on their cocksure version of what enlightened law ought to be?

And once it is admitted that some people have an earnest belief thet capitalism is theft, and the banking system is its rancid, corrupt handmaiden, the do-your-own-thing theory that underlies the supposed "right" to flout pot laws leaves no sound objection to someone's individual decision to rob the bank: The law is mistaken (or corrupt); the individual sees more clearly; therefore he can do what he wants.

The problem here is not deference to the rule of law, at which you sneer. The problem is your snarling, if feckless, defense of vigilantism.


Posted by: Bill Otis | Dec 10, 2012 4:35:26 PM

beth --

I know you're not a pothead. I know no such thing about Humboldt. Take a look at his sales pitch (which he declines to reveal here): http://www.straingeniuslabs.com/strain/7897

"Too much government does threaten the rule of law."

Which is why I, and I suspect you, voted for the Presidential candidate who wanted a slower, rather than a faster, growth in the amount of government we have. The fact that Romney lost, however, does not entitle me to pay less taxes than the law requires, no matter how sure I am that my excess tax dollars are going to be wasted or spent on things I think are really bad ideas.

The fact is that my side lost on taxes (just as your side has lost in 48 states on recreational use). The answer is not to go vigilante. The answer is to try harder next time at the ballot box. Until then, potheads can't do dope and I can't cheat on my taxes no matter how upset they or I might get. The rule of law isn't just for when you win.

Posted by: Bill Otis | Dec 10, 2012 4:53:22 PM

No, not just when you win, but the contract between the governed and those who govern has two entities. It is in a way an agreement or contract. Both sides are capable of violating it. The purpose of the contract and rule of law should be symbiotic.

Posted by: beth | Dec 10, 2012 7:05:53 PM

beth --

I couldn't agree more, but the Supreme Court has determined that the Constitution gives Congress the power to criminalize marijuana (Raich). Thus the CSA is not a violation of the principal compact between the people and the government. In addition, for forty years, through Congresses of all ideological stripes, the people have had the opportunity to repeal or modify the CSA. They haven't.

If and when they do, I won't like it but I'll abide by it. Until they do, those who'd like to light up must also abide by it, lest it turn out to be the case that honoring the rule is indeed just for when you win.

Posted by: Bill Otis | Dec 10, 2012 7:32:34 PM

Well bill we all know the USSC has screwed the pooch before. Sorry the so-called commerce clause does Not give them the right to make everything illegal.

Also Anthony don't forget the ever popular NSA spying sytem that got busted ....and it was only once it got busted and the lawsuits began that the govt Retroactivity make it legal....

Sorry that one is also a non-starter in my book and anyone involved in making said crime legal After the fact is in fact and law a Criminal.

Posted by: rodsmith | Dec 11, 2012 2:06:19 AM

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