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Cruz, Marijuana and States’ Rights

This remark is drawing some attention:

Republican Sen. Ted Cruz of Texas on Friday criticized President Barack Obama for not arresting people in Colorado who violated federal law by using marijuana.

“A whole lot of folks now are talking about legalizing pot. The brownies you had this morning, provided by the state of Colorado,” he jokingly said during his keynote speech at Texas Public Policy Foundation’s Policy Orientation.

“And you can make arguments on that issue,” Cruz continued. “You can make reasonable arguments on that issue. The president earlier this past year announced the Department of Justice is going to stop prosecuting certain drug crimes. Didn’t change the law.”

Voters in Colorado and Washington state voted to legalize the recreational use of marijuana in 2013, but federal law still prohibits the use of the drug. The Department of Justice announced in August of 2013 that it would not target for arrest adults who used marijuana in compliance with state laws.

Cruz said the Obama administration should continue imprisoning people for using marijuana until federal law is changed.

“You can go to Congress, you can get a conversation, you could get Democrats and Republicans who would say, ‘We ought to change our drug policy in some way,’ and you could have a real conversation, you could have hearings, you could look at the problem, you could discuss commonsense changes that maybe should happen or shouldn’t happen. This president didn’t do that. He just said, ‘The laws say one thing’ — and mind you these are criminal laws, these are laws that say if you do ‘X, Y, and Z’ you will go to prison. The president announced, ‘No, you won’t.’”

There is a small point to be made here. Marijuana use is still illegal under federal law, even it is legal under some state laws. The President is choosing not to enforce federal law.

The problem here is that our Congress has had ample opportunity to update federal law. In the wake of the Raich decision, there have been numerous attempt to change federal law so that it will respect the will of the states. This has not even been seriously considered by our Congress. They have not even had a real debate about it. They are so obsessed with never looking like hippy pot-smoker enablers, that they have refused to do anything. This “conversation” that Mr. Cruz talks about has not happened because it has been stomped down.

So I would turn this around. The correct criticism is of Congress, who have had nine years to change federal law and have refused to do so. I understand that Obama’s actions come from an Administration that has been happy to ignore the law whenever it suits them. But what we’re talking about here is standard-issue prosecutorial discretion. We don’t prosecute people for kiddie porn if they take pictures of their kids in swimsuits. We don’t prosecute people for jaywalking if they’re running across the street to fight a fire. And we don’t prosecute people for smoking pot when that would involve arresting tens of thousands of people.

However, this does cut both ways. The President could (and knowing him, likely will) rescind this promise at his discretion. A future President could do so. Under the current legal regime, people could smoke pot in Colorado for ten years and then suddenly find themselves in federal prison. So it is incredibly important that Congress move to recognize the states’ rights of Colorado and Washington (a subject Republicans are all about when it comes to abortion or gay rights). It is important that we do start this conversation in Congress. If only Ted Cruz knew a member of Congress who could get that conversation started …

That “conversation” is not something that will happen overnight. Even if Congress were amenable to changing federal law, there are anti-drug treaties we are bound to that will need to be changed. That could mean years of work and negotiation. Given the realities of the situation, I think basic prudence demands that we (1) agree to suspend federal marijuana prosecutions in states that have legalized it; (2) begin the process of revising federal law and international treaties to create a consistent legal regime.

Obama’s done Part 1. When will he and Congress start Part 2?

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  1. Seattle Outcast says:

    I think weed will be legal in most states within a decade. Perhaps in another 20 people will finally realize the government really shouldn’t be telling people what they can do with/to themselves, or maybe figure out that it doesn’t even really have the authority to do so.

    In the meantime, the any federal attempt to fuck with drug legalization is going to be met with a distinct lack of resources to do so on a real level, and the sudden discovery that most people don’t consider it to be a social problem, much less a “crime”…

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