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October 17, 2010

Obama Adminstriation promising to prevent states from expanding individual liberty and free markets

Though a bit sharp, I think the title of this post is a fair and balance (and also accurate) description of this news report from the Los Angeles Times, which is headlined "Holder promises to enforce U.S. drug laws if Prop. 19 passes."  Here are the basics:

Stepping up the Obama administration's opposition to Proposition 19, the nation's top law enforcement official promised to "vigorously enforce" federal drug laws against Californians who grow or sell marijuana for recreational use even if voters pass the legalization measure.

U.S. Atty. Gen. Eric Holder's response to the initiative comes as the administration has been under pressure to campaign against it more forcefully. Last week, Mexico's president, Felipe Calderon, chided the Obama administration for not doing enough to defeat it. And last month, nine former heads of the Drug Enforcement Administration publicly urged Holder to speak out.

In a letter sent Wednesday to the former DEA administrators, Holder wrote, "Let me state clearly that the Department of Justice strongly opposes Proposition 19. If passed, this legislation will greatly complicate federal drug enforcement efforts to the detriment of our citizens."

Holder's letter underscores that a period of turmoil, pitting the federal government against pot legalization backers, will ensue if voters approve Proposition 19. After California legalized medical marijuana in 1996 the DEA launched numerous raids against dispensaries and growers.

Los Angeles County Sheriff Lee Baca, who is a co-chairman of the main opposition committee, released the letter at a news conference at his headquarters Friday, flanked by two former DEA heads, the district attorney and the Los Angeles city attorney. "He is saying it is an unenforceable law and the federal government will not allow California to become a rogue state on this issue," Baca said. "You can't make a law in contradiction to federal law as a state. Therefore Proposition 19 is null and void and dead on arrival."

Proponents of the measure on the Nov. 2 ballot assailed the attorney general's one-page letter, denouncing his intention to disregard the will of California voters and his defense of a failed war on drugs. "We're not necessarily surprised that the establishment is coming down on the side of the status quo," said Dale Sky Jones, a spokeswoman for the Proposition 19 campaign.

The initiative would allow Californians age 21 and older to grow up to 25 square feet of marijuana and possess up to an ounce. It also allows cities and counties to authorize cultivation and sales, and to tax them. Several cities, including Oakland, appear to be poised to do so if the law passes. Polls have consistently shown that about half of the state's electorate favors legalizing marijuana....

[Holder's letter] noted that prosecutions under the federal Controlled Substances Act remain a "core priority" and wrote, "We will vigorously enforce the CSA against those individuals and organizations that possess, manufacture, or distribute marijuana for recreational use, even if such activities are permitted under state law." He did not say how he intends to do that, but said the department "is considering all available legal and policy options."...

Robert Raich, a lawyer who has handled two medical marijuana cases that went to the U.S. Supreme Court and supports Proposition 19, said the initiative does not violate federal law because it changes only state law, not federal law. "Simply because California and the federal government choose to punish an act differently does not mean they have a conflict," he said. He said it is no different than the state's medical marijuana laws, which have been upheld in court. But he said DEA agents could still enforce federal drug laws. "If the federal government wanted to waste its limited resources trying to prosecute some marijuana facility in Oakland, then nothing would stop them from doing that," he said.

The measure's proponents noted that Proposition 215, the medical marijuana law, drew a similar federal reaction. "This is 1996 all over again," said Stephen Gutwillig, the state director of the Drug Policy Alliance. But he noted that, besides California, 13 states and the District of Columbia now allow medical marijuana. "All that happened without a single change in federal law."...

Until Holder released his letter Friday, the Obama administration's fight against the initiative was largely being carried out by the drug czar, Gil Kerlikowske.  The White House press office, calling it a "sensitive issue," referred questions on the president's role to the Justice Department, which did not respond to a request for information or for an interview with Holder.

I am disappointed, but not really surprised, that this story has yet to generate backlash or even comment from the usual suspects on the right who are so eager and usually so quick to attack every supposed "big government" move by the Obama Administration.  For reasons I am still struggling to fully understand, the traditional conservative voices on the right who gush about individual liberty and free markets, and who love to bash big government and the Obama Administration, seem to flee from their purported principles when the liberty and free markets at issue involving growing and smoking a weed.

As I have noted before in this post, the group Liberty Central started by Virginia Thomas has a website with the "primary objective" to seek "to harness the power of citizen voices, inform everyday Americans with knowledge, and activate them to preserve liberty." In addition, the "Founding Principles" webpage states that "[f]rom its earliest stages, Liberty Central identified limited government, individual liberty, free enterprise, national security, and personal responsibility as the five principles that best capture the foundations we, as a nation, need to preserve." It is because I am a firm believer in these important principles that I have signed a letter expressing support of Proposition 19.  It is also why I will remain deeply troubled by anyone on the right who pledges allegiance to these principles and yet supports the promise of AG Holder and the Obama Administration to take federal action to prevent Californians from vindicating these principles through reform of marijuana laws.

Some related posts on pot policy and politics:

October 17, 2010 at 01:30 PM | Permalink


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Breaking News: Attorney General Holder vows to continue tilting at windmills. "We promise to you, the American people, that we will leave no windmill untilted, no matter what the cost to the taxpayer."

Meet the old boss, same as the new boss.

/law student, Baylor Law

Posted by: Justin T. | Oct 17, 2010 1:55:45 PM

Save it for yer Cato cohorts, Doc.

Posted by: Sultan Pepper | Oct 17, 2010 2:00:38 PM

Interesting - there have been no small government candidates commenting publically about Erick Holder and the Obama administration's statement, but there has been a new infusion of money into the vote yes campaign. Perhaps the yes vote is solidified under the radar.

Posted by: beth | Oct 17, 2010 3:29:38 PM

Gee Doug, could it be that the reason those small government/states' rights people have been mostly silent is because most (though admittedly not all) of them are just a bunch of poser-hypocrites? During the eight years of Bush they cheered on a huge federal/executive power grab. Now that Obama's in power they make a lot of noise about limited government, but only on certain issues – is it really a surprise that we don't hear their voices quite as loud when it comes to individual liberties like marijuana? Other than a few like Randy Balko, after all these years you have to be pretty gullible to believe these fakers.

Posted by: dm | Oct 17, 2010 9:58:23 PM

"limited government, individual liberty, free enterprise, national security, and personal responsibility as the five principles that best capture the foundations we, as a nation, need to preserve."

Ask yourself whether the federalization of crime beginning with the Crime Control Act of 1968 has fostered any of the principles listed above.

Posted by: k | Oct 17, 2010 10:26:42 PM

An individual's freedom to decide for himself the dangers of marijuana is no more to be cherished than the identical freedom to decide for himself the dangers of methamphetamine. Simply that some government bureaucrat thinks the latter to be more hazardous than the former is woefully insufficient reason to deprive the individual of the freedom to make up his own mind. May I assume, therefore, that the voices speaking up for Prop 19 will be equally vigorous in defense of next year's Proposition to legalize meth? And for the year after that to legalize heroin, LSD and ecstasy?

The freedom to MAKE UP ONE'S OWN MIND about what he puts into his body is too precious a principle to be sacrificed on an alter slapped together by a bunch of nit-picking government operatives -- not so?

Posted by: Bill Otis | Oct 18, 2010 12:33:33 AM

The rent seeking theory explains anomalous lawyer policies. Legalization would cost government lawyer jobs, even as it generated tax revenues and enriched government.

Posted by: Supremacy Claus | Oct 18, 2010 7:56:44 AM


The reason why I oppose prohibition of marijuana is simply because I don't see how the harm justifies the prohibition--just like I don't see how the harm of alcohol or tobacco would justify a prohibition. I can't say the same of meth or heroin, which have a strong tendency to kill their users or harm others. I've never known anyone who seriously injured himself or another from marijuana usage (aside from the health hazards of eating loads of junk food while watching bad movies), and I know a lot of people who have used marijuana. I just don't think expending billions a year to stop smoking joints or bowls is the best use of resources.

Professor B--

I don't think the real conservative fight should be over legalization versus no legalization, but rather the more fundamental issues of why the Fed should be involved with drug prohibition in the first place. Traditional conservatives are not afraid of runaway state governments, simply because they're easier to check--the real concern is with an overpowering federal government that is a lot harder to stop. To paraphrase Bob Barr, if the states want to screw themselves up, that's their right--the Fed need not and should not try to save states from themselves.

And as a corollary to that, if California wants to legalize marijuana, or if a state wants to ban alcohol consumption, then those are decisions that should be debated by the states, not co-opted by the Fed as a means of protecting states (and their citizens) from themselves.

Posted by: Res ipsa | Oct 18, 2010 9:00:11 AM

Res ipsa --

The strict libertarian argument does not, indeed it cannot, depend on the dangerousness of the drug. It depends on who has the right to make the decision about its dangerousness. The CSA, which prohibits both meth and pot, presumes that the government has the right to make that decision. Since we are talking about what a person may put into his own body, a strict libertarian would have to (and they do) oppose that.

You have reached the eminently correct conclusion that meth is more dangerous than pot. But another person -- rational, adult and possessing free will, but (I would argue) not as informed -- could reach a different conclusion. He could think that meth is not that much more dangerous, or, even if it is, that he can handle it. One way or the other, the decision -- he would say -- is his to make, not the government's. A truly free society allows individuals to decide on their own what they voluntarily put in their bodies, no matter what others might believe the dangers to be.

Do you see anything wrong with his argument? If not, I don't see any principled way to avoid legalizing meth.

P.S. The way to avoid the dangers of bad movies is to go to sleep, as I can tell you you'll find out when you get older.

Posted by: Bill Otis | Oct 18, 2010 10:39:26 AM

Bill, Your conclusion is not supported by reason. In order to be correct your conclusion would have to include the proviso "under a strict libertarian rationale," I don't see any principled way to avoid legalizing meth.
However, all of us are not "strict libertarians" your argument does not allow for the initial premise that MJ is obviously, clearly and demonstrably not as dangerous as meth. If you take that as an initial premise, then the argument can be

because marijuana is not particularly dangerous, and because as a free people we value individual liberty when it does not conflict with general public safety, then marijuana should not be prohibited.

this is not an illogical or inconsistent argument, it just requires a judgment that you agree is true; that marijauna is not as dangerous as meth.

Posted by: KRG def attny | Oct 18, 2010 12:39:27 PM

KRG --

The libertarian argument is the principal engine of the legalization movement, and, indeed, your second paragraph seems to me to have a robust libertarian theme.

But for however that may be: If social (and not merely individual) judgments about dangerousness are a permissilbe (persuasive?) part of the mix, then a majority judgment, expressed by the national legislature in the never-repealed-and-only-strengthened CSA, ought to be given its due. Whether the majority jugdment about dangerousness is wrong is principally a medical, and not a legal, question.

So far as I know, very, very few doctors think smoking marijuana is good for you. I also don't know a single parent who encourages his kid to start down that road.

Posted by: Bill Otis | Oct 18, 2010 1:13:04 PM

They will continue to prosecute people for buying even small amounts of pot, but ignore the growing illegal immigrant and porous border problem feeding the hard drug market and gang problem? Their priorities are insane.

Posted by: MikeinCT | Oct 18, 2010 1:24:43 PM

MikeinCT --

At one point, I was a high-ranking (politically appointed) officer of the DEA, and the feds almost never go after small-time pot users. We had our hands full with the meth superlabs, crack and, toward the time I left, abuse of legal prescription drugs. (One thing I found out is that you don't want to think about what your 15 year-old is doing in your medicine cabinet while you're at work).

Be that as it may, I could scarcely agree more that the current DOJ has its priorities bass ackwards, including but not limited to its non-enforcement of immigration law. I also agree that, no matter what happens with Prop 19, the major problems will continue to be with the gangs moving harder drugs. The amount and gruesome quality of the violence they use is unknown in the United States -- but, unfortunately, is getting better known on Holder's watch.

Posted by: Bill Otis | Oct 18, 2010 1:38:43 PM


I think we're on the same page that a pure libertarian argument would not distinguish between marijuana and meth--or for that matter, marijuana and dueling.

But I don't think there are many "pure" libertarians around. There are, however, many people who believe that if something does not pose a substantial risk of harm, then the government simply shouldn't be involved, even if it comes with a reasonable amount of danger. It's what I'll call a "soft" libertarian view that I think many conservatives fully subscribe to.

I think medical evidence firmly shows that getting hammered is detrimental to one's health, but I don't think that getting drunk should be illegal, because the harm simply isn't substantial enough to warrant government intervention. You and I may be speaking different languages, or maybe just splitting hairs, but I see my view as an inherently libertarian one. I disapprove of intoxication, I think it's really bad for one's health, but I believe that if someone wants to get drunk, they should be able to because it's just not dangerous enough to criminalize.

Posted by: Res ipsa | Oct 18, 2010 2:19:08 PM

I can't go back and forth about the dangers of various illegal substances, but correct me if I'm wrong. I believe that part of the problem is that the marijuana was classified by the dea in the same category as heroin.

This classification is certainly not based on evidence based science. It was a classification established by the legal system, not medical research. I know there have been challenges to this arbitrary classification, but designations are decided based on politics.

Posted by: beth | Oct 18, 2010 3:12:53 PM

Because 99.9% of us who read this blog are criminal lawyers, we view the legalization debate through the prism of the criminal justice system. Moreover all of the arguments, pro or con, on legalization have been made before. But we persist in repeating them. As a result we completely miss the national security implications of the legalization debate.

Right now we are providing millions of military, technological, logistical, and law enforcement aid to the Mexican government to fight the drug cartels. But the cartels have hollowed out large sections of the country along our southern border where the Mexican government will only venture in full battle rattle.

These hollowed out parts of Mexico are the safe havens from where the cartels conduct their business north of the border. On this type of battle field we cannot arrest/prosecute/incarcerate our way to victory. Also because of our rules of engagement we can't kill our way to victory either.

The complete legalization of all street drugs, not just marijuana, will significantly diminish the profits of the cartels. The Mexican government may then be able to fight the cartels using traditional law enforcement tactics rather than counter-insurgency tactics.


Posted by: Fred | Oct 18, 2010 10:57:56 PM

Fred --

Thank you for taking this debate to the place it logically ends up, to wit, as you say, "The complete legalization of all street drugs..."

Marijuana legalization advocates almost always steer clear of that one. Hat tip to you for putting it out on the table. Many thoughtful marijuana legalizers would bridle at the thought of also legalizing more dangerous drugs, yet it remains the case, as you point out, that, if marijuana were legalized in the US, the cartels would not go away, just as organized crime did not go away with the end of Prohibition. They would merely increase their attempts to market drugs that almost no serious person wants to legalize.

Posted by: Bill Otis | Oct 19, 2010 11:36:51 AM

Mr. Otis:

Either no street drugs should be legal or all should be legal. In my area when the supply of crack dried up the dealers switched to heroin. Legalizing only marijuana would solve nothing.

Might I suggest you start visiting some national security blogs. There are many, some of which are very good. Yes some are overtly Republican or Democratic. But the main dividing line is between interventionist (nearly 98%) v. neo-isolationist. The main topics without exception concern fighting a counter-insurgency war in a foreign country and the tactics of 4th generation warfare. The blog authors are usually retired military officers with combat experience from Viet Nam to the present.

If you read some of them you will notice the striking similarity between the tactics employed by the insurgents in Iraq, Afghanistan, Pakistan, India, Nigeria, ect. and the Mexican drug cartels. You will also notice a striking similarity between the tactics of the governments of these countries and their western allies and the tactics of the Mexican government. At best the insurgents have been fought to a draw, at worst they're winning.

This is exactly what is happening in Mexico. Do you believe that continuing the current strategy against the cartels will defeat them? Do you believe that doubling or tripling the aid we provide the Mexican government will defeat them?

They are awash in cash that comes from US drug users, which allow them to corrupt any Mexican government official and to buy an unlimited number of light infantry weapons. And they still have millions of dollars left over.

Money is always invested where it can earn the highest return. If all street drugs are legalized in the US, is there some other contraband the cartels could smuggle north that would have the same return on investment as drugs? I don't think there is. Certainly some drug smuggling would continue. But the flow of money south from the pockets of US drug users would decline which would steadily erode the cartels ability (or even need) to corrupt the Mexican government or to go toe to toe with the Mexican military in a firefight.

Posted by: Fred | Oct 19, 2010 4:24:11 PM

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Posted by: Electric Cigarette | Dec 16, 2010 7:17:49 AM

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