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April 12, 2013

A few minutes of ganja gold social commentary from The Colbert Report

I have already seen lots of interesting social commentary about the modern marijuana reform movement, but the recent segment by Steven Colbert (embedded below) makes for especially amusing viewing on a Friday afternoon.  Enjoy:

Notably, this amusing new segment may soon seem dated, as this AP article details that Maryland appears to be on the verge of becoming the 19th state to legalize medical marijuana.  In addition to being intrigued by state developments in this realm, I think it may be only a matter of time before so many states have legalized medical marijuana that the feds may have to confront new constitutional arguments problems when trying to aggressively prosecute and severely sentence responsible persons who are involved in state-approved medical marijuana businesses.

A few recent and older related posts: 

April 12, 2013 at 11:44 AM | Permalink

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"I think it may be only a matter of time before so many states have legalized medical marijuana that the feds may have to confront new constitutional arguments problems when trying to aggressively prosecute and severely sentence responsible persons who are involved in state-approved medical marijuana businesses."

Why would there be new constitutional arguments and problems?

Did the text of the Supremacy Clause change?

Did Raich get overruled while I wasn't looking? Well, no, in fact, two of the three Raich dissenters (Rehnquist and O'Connor) have been replaced by Roberts and Alito, both of whom are likely to go with the Raich majority, not the dissent. So the Raich arguments are now in more trouble than when they lost 6-3 the first time.

The increasing popularity of so-called "medical" pot is a political phenomenon, not a constitutional one. Given the ideological center of gravity on the present Court, and given the cast of Justices, a challenge to Raich is going to be denied with something like this as the Court's final sentence: "If medical marijuana now enjoys majority support, that is a policy matter for Congress to consider. Congress remains free to change the CSA as it may think wisest. Until that happens, however, the Congress that created the federally supreme law we upheld in Raich enjoys the same Commerce Clause power now that it did then. It is precisely to shift with changing political tides that Congress, but not this Court, has the power."

Posted by: Bill Otis | Apr 12, 2013 12:46:44 PM

Today three republicans and three democrats introduced legislation in the House of Representatives to shield people from federal arrest and prosecution in states that have legalized medical marijuana or passed laws to regulate marijuana like alcohol.

House Bill 499 was introduced - This bill would place marijuana under the ATF.

Senate Bill 691 called the safety valve bill would give more flexibility in sentencing

Posted by: beth | Apr 12, 2013 2:25:51 PM

beth --

Well, that's 6. Just 212 more to go.

Since they've never gotten those bills through (or even considered by) the Senate, I wouldn't be holding my breath for any action in the House.

Not that today's legislative developments help out Doug's prediction of new trouble IN THE COURTS for drug prohibition. As I was noting, Raich is stronger today than the day it was decided.

Posted by: Bill Otis | Apr 12, 2013 2:33:52 PM

Yes, I know Bill. These three have been presented in the 2013 session so of course no one knows if they will get out of committee or not.

Doug's prediction that "feds may have to confront new constitutional arguments problems when trying to aggressively prosecute and severely sentence responsible persons who are involved in state-approved medical marijuana businesses" has already played out.

The key words in Doug's argument are FEDS - AGGRESSIVELY PROSECUTE - SEVERELY SENTENCE - STATE APPROVED.

The Chris Williams case in Montana was a remarkable example of politics influencing the prosecution and sentencing of a medical marijuana grower. Supporters exerted profound influence on the Justice Department and Prosecutors and after TRIAL charges were reduced.

Posted by: beth | Apr 12, 2013 5:34:45 PM

beth --

I thought the operative words in Doug's remark were (emphasis added), "I think it may be only a matter of time before so many states have legalized medical marijuana that the feds may have to confront NEW CONSTITUTIONAL ARGUMENTS..."

In other words, confront court challenges. But, with Raich as the governing law, such challenges will go nowhere.

I could not agree with you more, however, that politics will play a part in determining how aggressively DOJ goes after these "medical" pot people. But in those cases DOJ decides to prosecute, the defendants will have zero additional Constitutional arguments. Their political position (and thus clout with the administration) will improve, but their legal position won't.

Posted by: Bill Otis | Apr 12, 2013 5:50:27 PM

Heck Bill - we did have a different emphasis. Raich does determine the authority. On the other hand, prosecution causes many problems for the administration, and The Department of Justice apparently finds itself between a rock and a hard place.

Don't hold me to your exact quote, but I believe you told me that State and Local Law Enforcement did not have to enforce federal law. This was during a discussion of federal gun laws. I believe that this was also a discussion some states were having about medical marijuana. They were considering legislation at the state level to prohibit state and local enforcement of federal marijuana prohibition. It is questionable that enforcement could be effective without local law enforcement

Of course, the stick the feds have over state and locals is the sharing of forfeiture. It's a powerful financial incentive - that is unless states determine that a state tax on marijuana will be more lucrative.

Sundance will release a new documentary April 16th called Code of the West. It's existance demonstrates the strong organization and support for the medical marijuana suppliers in Montana - It features Chris Williams and his prosecution. This is the link http://www.nytimes.com/2012/11/08/opinion/the-fight-over-medical-marijuana.html

Things have changed alot since 1932 when Louis Brandeis said, "It is one of the happy incidents of the Federal System, that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country"

Posted by: beth | Apr 12, 2013 7:51:05 PM

beth --

You are correct. The state is under no obligation to enforce federal law, cf. Printz v. United States, 521 U.S. 898 (1997). Whether they will or won't cooperate in its enforcement will vary state-by-state, depending on a whole bunch of political and legal factors. Of course the feds can always enforce their own law, as they are doing most prominently (for now) in California.

Posted by: Bill Otis | Apr 12, 2013 11:11:34 PM

I understand the feds are trying to enforce federal law in California, but the state isn't responding to their warrents unlike Oregon. If state and locals don't cooperate it makes it much more difficult to make the case. For the political class, it is a nightmare. Well, the job of an elected official should require some ability for critical thought.

Posted by: beth | Apr 13, 2013 12:26:41 AM

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