Pivoting from Alex’s post on the need for new legal frameworks in the post-legalization era, I wanted to talk about the Obama Administration floating some trial balloons on how they are going to respond to Washington and Colorado legalizing pot.
It’s not promising.
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.
Busting low level users? Suing the states? Once again, we see the legacy of Raich: a federal government empowered to use any and and all means to override state law.
There were a lot of people who speculated that re-election would empower Obama to “pivot” on the drug issue. I was skeptical, to say the least, because cracking down on medical marijuana wasn’t exactly a political winner for him in the first place. No one outside of a few libertarians decided their vote on Obama’s marijuana policy. Ardent drug warriors weren’t voting for Obama anyway and his supporters ignored his crackdowns. But the new rhetoric emerging from the Hypocrite Smoker in Chief shows that the Obama defenders were definitely smoking something if they thought things would change.
Notice what words and phrases do not appear in the New York Times article: pivot, possibly ending the war on drugs, whether our drug laws are doing more harm than good, the drug war a failure, crime and misery [the drug war] creates.
You’d think that if Obama were going to “pivot,” simply leaving alone two states that overwhelmingly legalized pot and gave him their electoral votes would be the best place to start.
Marijuana actually outpolled Obama in Colorado, Washington and Arkansas.
The Administration’s response is so disheartening that it has even caused Andrew Sullivan to deviate from his usual “we just have to trust that Obama has a long-term plan in mind” programming:
Well, since they’re asking: if they decide to treat the law-abiding citizens of Colorado and Washington as dangerous felons; if they decide to allocate their precious law enforcement powers to persecuting and arresting people for following a state law that they have themselves just passed by clear majorities; if they decide that opposing a near majority of Americans in continuing to prosecute the drug war on marijuana, even when the core of their own supporters want an end to Prohibition, and even when that Prohibition makes no sense … then we will give them hell.
Will we? Will we really, now? Obama has spent four years cracking down on legal medical marijuana in a way that George W. Bush never did and almost the entirety of the liberal media and the so-called “Obamacons” acted like toilets with the lids up while he did it. Have you seen a massive outrage from left wing blogs over the NYT article I quote above? Have you seen any of them even acknowledge it? Rachel Maddow did a whole show on how marijuana policy is changing. I scanned through it to see if she gave Obama hell for his policies. If she did, I missed it.
For four years, liberals have steadfastly ignored Obama’s repulsive marijuana policies. They did this, they said, because it was so important for Obama to win re-election and he needed liberal support on more important issues. But there are always more elections and the issues are just as important now as they were three months ago. Are the liberals really going to turn on Obama during a fiscal cliff showdown because of pot? Are they really going to let the GOP win 2014 and 2016 because of medical cannabis? I don’t think so.
The fact is that if Obama is going to be pushed on his marijuana policy, that push is going to have to come form the Right; from politicians who actually believe in state’s rights or have libertarian social views. The only other alternatives are the Supreme Court reversing Raich or a bunch of states uniting to openly and aggressively defy federal drug laws (e.g., by forbidding any state cooperation with drug raids or prosecuting federal agents for violating state law).
But the idea that Obama is going to reverse course on this is ridiculous. And the idea that his supporters will turn on him is even more so. There are too many people who have a vested interest in the Drug War. And the next time Obama defies special interests — on healthcare, banking, defense or law enforcement — will also be the first.