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October 15, 2012

Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?

The question in the title of this post are prompted by this new piece at the Huffington Post, which is headlined "States Legalizing Marijuana Will Violate Federal Law, Trigger Constitutional Showdown: DEA, Drug Czars." The piece starts this way:

On a Monday teleconference call, former Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy voiced a strong reminder to the U.S. Department of Justice that even if voters in Colorado, Oregon and Washington pass ballot measures to legalize marijuana use for adults and tax its sale, the legalization of marijuana still violates federal law and the passage of these measures could trigger a "Constitutional showdown."

The goal of the call was clearly to put more pressure on Attorney General Eric Holder to make a public statement in opposition to these measures. With less than 30 days before Election Day, the DOJ has yet to announce its enforcement intentions regarding the ballot measures that, if passed, could end marijuana prohibition in each state.

"Next month in Colorado, Oregon and Washington states, voters will vote on legalizing marijuana," Peter Bensinger, the moderater of the call and former administrator of DEA during Ford, Carter and Reagan administrations, began the call. "Federal law, the U.S. Constitution and Supreme Court decisions say that this cannot be done because federal law preempts state law."

Bensinger added: "And there is a bigger danger that touches every one of us -- legalizing marijuana threatens public health and safety. In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed. Drug treatment admissions are up and the number of teens using this gateway drug is up dramatically."

Bensinger was joined by a host of speakers including Bill Bennet and John Walters, former directors of the While House Office of National Drug Control Policy; Chief Richard Beary of the International Association of Chiefs of Police (IACP); Dr. Robert L. DuPont, founding director of the National Institute on Drug Abuse (NIDA) and who was also representing the American Society of Addiction Medicine (ASAM) and several others.

The position being pushed here by past and current drug warriors seems to have a little bit of a "chicken little" sky-is-falling quality to it.  Nevertheless, the apparent urgency of these respected voices confirms my strong belief that this is a topic very worthy of discourse on the Presidential campaign trail.  I am cautiously (and perhaps foolishly) optimistic that the next Prez debate's town hall format has the best chance to bring these issues into national discourse.  But even if it does not, I hope some members of the media might follow-up on these matters in interviews with both of the presidential contenders.

Some recent and older related posts:

October 15, 2012 at 03:52 PM | Permalink


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I am shocked, SHOCKED to learn that people who built their careers as drug warriors demand continued warfare.

But it's actually pretty dumb to say that "legalizing" marijuana violates federal law. That just doesn't make sense. It is obvious that possession of CS will continue to be a federal crime, enforceable by federal authorities if they want to be so silly. But what are they saying? Federal law requires states to maintain the same antiquated and ineffectual prohibitions as a matter of state law?

Posted by: Texas Lawyer | Oct 15, 2012 3:57:09 PM

We have 50 states. If we really want to see how a change in a public policy will effect, let's let 2% of our states try it out for a little while. If it doesn't work, then swoop in. If it does, it starts a discussion.

Posted by: NickS | Oct 15, 2012 3:59:48 PM

No "constitutional showdown" will or should occur. However, you have to give these guys credit for trying -- their hyperbole is textbook strategy for causes that have little substantive merit. In a way I feel somewhat bad for them, as they realize their careers were involved in (or, even more so, built on) an antiquated prohibition.

Posted by: anon | Oct 15, 2012 4:38:30 PM

"In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed."

Is there any proof for this assertion? Seems like that would be big news if true.

Posted by: vache sacree | Oct 15, 2012 5:45:51 PM

I had the same thought/question, vache sacree, about evidence to back up this claim. I will be sure to post any that I find (and encourage others to send me any information they have on this front).

Posted by: Doug B. | Oct 15, 2012 5:51:57 PM

Doug -

A very quick Internet search turns up a few interesting articles about why fatal car accident rates go DOWN in states with medical marijuana laws, like this one:


Someone should tell Mr. Bensinger the good news!

Posted by: vache sacree | Oct 15, 2012 6:10:20 PM

Why does the drug war look just the same as it did twenty years ago? Just follow the money . . .

Posted by: Jay Hurst | Oct 15, 2012 6:24:25 PM

Several states already have legalized pot for purportedly medicinal use; indeed this has been the case for years. But state approval, even for a relatively benign purpose, does not trump federal law, see Gonzales v. Raich, which is one of the reasons Mr. Holder's current crackdown on "medical" dispensaries in California in underway full steam.

We've already had the "constitutional showdown," and the legalizer side lost, see also, Oakland Cannabis Buyers Cooperative. What that side needs, but knows it doesn't have the public support to get, is a Congressional showdown to amend the CSA.

If it turns out the the pro-dopers now, for the first time in over 40 years, do have such support, fine, more power to them. But it takes more than stomping one's foot to actually change the law.

Posted by: Bill Otis | Oct 15, 2012 7:34:42 PM

I had the same thought/question, vache sacree, about evidence to back up this claim. I will be sure to post any that I find (and encourage others to send me any information they have on this front).

The CDC reports that drug overdose deaths per capita have tripled in the last twenty years, but puts most of the blame on increased abuse of prescription drugs like oxy, vicodin and codeine. Marijuana is not the same sort of drug as oxycontin; it is prescribed for different things and produces different effects. I think anyone truly concerned about the rise in drug overdose deaths should focus their attention on oxycontin, not marijuana.

Posted by: Paul | Oct 15, 2012 9:46:04 PM

With Paul Ryan saying he thinks local option is good constitutional sense, congressional legislation really should be just around the corner. The libertarian/social liberal cross table agreement should help seal the deal.

Posted by: Joe | Oct 16, 2012 12:10:50 AM

Joe --

I'll bet you $100 here and now that, not only is a pro-pot deal in Congress not "right around the corner," but that, over the next two years, Congress will take no action whatever to change the legal status of pot.

Are we on?

Posted by: Bill Otis | Oct 16, 2012 7:13:36 AM

No, Bill, since I was being sarcastic.

Posted by: Joe | Oct 16, 2012 10:06:58 AM

Joe --

Well phooey.

Posted by: Bill Otis | Oct 16, 2012 10:37:10 AM

Further evidence that the sky is, in fact, not falling: http://www.scientificamerican.com/article.cfm?id=portugal-drug-decriminalization
Granted, this system is weirdly both more and less liberal. It does not legalize, it decriminalizes. However, it decriminalizes everything. With the results one would expect if the focus is on public health rather than arresting people who use differnt drugs than you. Also, I believe we had this fight when NY legalized alcohol many years ago, over the objection of the feds.

Posted by: Ala JD | Oct 16, 2012 11:09:48 AM

The more states that legalize pot, regardless of the reason, the less jackals the feds have to enforce their failed drug war that exists solely to secure employment for a bunch of wee wee pigs at the tax payers expense.

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