The administration hints at a change in direction on Prohibition 2.0…

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Jaybird

Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

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54 Responses

  1. Avatar Burt Likko says:

    Really, isn’t this the most deferential attitude possible on the part of the Department of Justice? DoJ cannot simply say, “We’re unilaterally not going to enforce the CSA in these two states” because then the Federal law simply isn’t law anymroe. DoJ can say “We’re allocating our resources to tackle the most significant problems confronting us, which is different in these states because these states’ laws create a different sort of environment there.”

    Short of the CSA changing, I don’t see how DoJ can, reasonably, go farther than this in deferring to the state laws.Report

    • I think it’ll depend entirely on the enforcement. If it works like they’re now saying it will, I think it’ll be a big win. If it works like medmar worked, then it’ll be worse than nothing.Report

    • Avatar Jaybird in reply to Burt Likko says:

      DoJ can say “We’re allocating our resources to tackle the most significant problems confronting us, which is different in these states because these states’ laws create a different sort of environment there.”

      Absolutely. But then when they go on to kick in doors *ANYWAY*? Something is fishy.
      When the DEA is calling banks and armored car companies and pressuring them to not do business with dispensaries? Something is fishy.
      There is more than enough room for some degree of benign neglect to go on. While perhaps there are a handful of things that you need to say prior to engaging in this benign neglect, it’s important to actually refrain from kicking in doors or from calling armored car companies and saying “don’t do business with these guys”.

      While it’s true that the DoJ would say something like this if it were actually going to engage in restraint… it’s also something that the DoJ would say if it were just trying to deflect criticism. I see a lot more indicators that it’s the latter than the former.Report

    • Avatar LeeEsq in reply to Burt Likko says:

      Exactly. Federal law is supposed to take precedence over state law. Under federal law, marijuana is illegal and is going to be so for a long time. The United States government is not going to give up on the supremacy clause. When a state decides on a policy that is against federal law, the best we could up for is for the federal government to turn a blind eye if the state’s policy is a good one.Report

    • Avatar James K in reply to Burt Likko says:

      I agree with your take Burt. A government agency isn’t just going to say “the law is band and the legislature should change it”. They may be thinking it, or they may not, but either way this memo offers no evidence.Report

  2. Avatar Stillwater says:

    Good post Jaybird. Really good post. Both you and Burt know more about these issues than I do, but I tend to agree with Burt’s comment above. (Not that you’re disagreeing with Burt’s comment above!) It’s movement in the right direction and approaches the outer limit of what one could reasonably expect from the DOJ.Report

    • Avatar Jaybird in reply to Stillwater says:

      If I were to be a quibbler, I’d quibble that this is a change in direction but not one of movement.

      I think the official term for this is “head fake”.

      (Though I’d *LOVE* to be wrong! This crow would be the most delicious crow of my life!)Report

      • Avatar Glyph in reply to Jaybird says:

        JB – maybe I am unduly optimistic, but rather than “head fake” couldn’t this be a “face save”?

        Like after the parent has already given up on actually doing anything about the kids’ backseat behavior, and has been reduced to saying things like “Don’t make me come back there/turn this car around!” in an attempt to maintain the fiction of total parental control?Report

      • Avatar Jaybird in reply to Jaybird says:

        It depends on whether the actions that follow this time are easily compared to the actions that followed last time.

        It’s only been a few days and so it’s premature to say one way or the other… but it seems to me that the folks who want to argue that this time it’s not different have a easier row to hoe than the people who argue that this time things have changed.Report

  3. Avatar Rod Engelsman says:

    It really doesn’t change anything either way, JB. The law has to change and I don’t see that happening anytime soon. There’s entirely too much money to be made by too many people chasing after and locking up potheads. Mostly on the right side of the aisle but also definitely including the prison guard unions as well.

    And even if this is fer gosh and golly, really, really, real… well this administration is only this administration until January 20, 2017, and then it could all be flipped back like a light switch. That’s just the nature of any kind of executive branch action or policy.Report

    • Avatar Jaybird in reply to Rod Engelsman says:

      Yep.

      One of the wacky things, though, is that individual states can (and do) keep legalizing recreational and/or adding provisions for Medicinal.

      Hit and Run mentioned the five states that are likely next to do something and mentioned: Oregon, California, Nevada, Maine, and Alaska. While, perhaps, the Federal Government will continue to kick down doors and tell private companies to not work with dispensaries, this doesn’t strike me as being sustainable in the long term.Report

      • Avatar Mike Schilling in reply to Jaybird says:

        One of the wacky things, though, is that individual states can (and do) keep legalizing recreational

        It it entirely within the power of a state not to have laws against things that happen to violate federal laws.Report

      • Avatar Jaybird in reply to Jaybird says:

        not to have laws against things that happen to violate federal laws.

        This isn’t absence of action, though. This is *POSITIVE* action in another direction entirely.

        They didn’t merely strike laws from the books. They added laws discussing the regulation and sale. We’re not just talking about the states discussing how they want to turn a blind eye (which would be one thing). We’re talking about the states licensing, regulating, and taxing.Report

    • Avatar Stillwater in reply to Rod Engelsman says:

      The law has to change and I don’t see that happening anytime soon.

      Not necessarily. Consider the Obama Admin’s stance on DOMA. By refraining from defending it in court (which it was mandated to do!), the Executive was effectively abandoning it’s obligation to enforce the law and let the court’s decide it’s constitutionality. I could see something similar happening wrt marijuana. Not identical, mind.

      That’s why I believe that despite the entirely reasonable cynicism expressed by Jaybird, the rhetorical shift is real and has the potential to cause movement in the direction of legalization.

      Is this just naive wishful thinking?

      Sure!Report

      • Avatar Jaybird in reply to Stillwater says:

        the rhetorical shift is real and has the potential to cause movement in the direction of legalization

        What’s different this time when compared to, oh, the Ogden Memo?Report

      • Avatar Stillwater in reply to Stillwater says:

        My lack of cynicism.Report

      • Avatar Burt Likko in reply to Stillwater says:

        Alas, the cognate challenge to the CSA was made during the Bush II Administration, and that Administration accepted the defense of the law. More’s the pity, the Supreme Court upheld the CSA on commerce grounds.Report

      • Avatar Stillwater in reply to Stillwater says:

        Well, I did say “not identical”…Report

      • Avatar James K in reply to Stillwater says:

        And Scalia got to demonstrate that his supposed originalism is just so much wind.Report

      • Avatar BlaiseP in reply to Stillwater says:

        As with adherents to the Old Time Religion, never did anyone advocate more changes to existing mores and praxis thereof than those who attempt to return us to the Good Old Days. Never mind what history actually records about those good old days, Scalia the Originalist, that old fraud and seance artiste, will pretend to raise the dead and tell us what they actually meant.Report

      • Avatar Rod Engelsman in reply to Stillwater says:

        By refraining from defending it in court (which it was mandated to do!…

        Is this really true, though? Back when this was a thing in the news, a lot of right-wing types were making that claim but it never made a lot of sense to me. I mean… constitutionally and all, the Executive has the duty to enforce laws passed by the Legislature, but defending it against a court challenge isn’t really the same thing, is it? It seemed to me that what they were saying was that as long as it was on the books they would enforce it* but they disagreed with the law and believed it to be unconstitutional, so they weren’t going to expend resources defending it in court. I understand that it’s a traditional role for the Executive to defend laws against challenges, but that’s mostly because they have the lawyers to actually do such a thing. But is it an actual constitutional requirement? Where does the document say that?

        AFAIK, the answer is “it doesn’t.” And the Constitution also doesn’t say that the Supreme Court shall have the power to strike down laws passed by the legislature. The Constitution is silent about how its provisions are to be enforced. It seems to assume that everybody will just play nice and do what it says and not ever have any disagreements about what it means. The SC was originally only meant to be the final court of appeals.Report

      • Avatar Stillwater in reply to Stillwater says:

        Well, the executive is charged with enforcing Federal legislation (the law of the land!), and a failure to defend that legislation from court challenge would constitute an abnegation of it’s responsibilities to enforce it.

        Seems pretty clear to me.Report

      • Avatar J@m3z Aitch in reply to Stillwater says:

        Rod is pretty much in the right of it. Keep in mind that the Prez takes an oath to uphold and defend the Constitution, so that can (may, not must) be interpreted as not defending laws the Prez believes to be unconstitutional. And that’s the position Obama took. Of course one might push on that a bit and ask how can he be upholding the Constitution if he’s still enforcing the law on a day-to-day basis. And on that position I believe he essentially said (or at least thought), “well, there’s no definitive ruling on its constitutionality yet, so we’re going to split the difference and hope you don’t really push too hard on that particular question.” Which seems to me a fair enough position: politically realistic if not logically fully coherent.Report

      • Avatar BlaiseP in reply to Stillwater says:

        The matter of enforcement isn’t as clear as it might seem. There’s this backgrounderReport

      • Avatar Jaybird in reply to Stillwater says:

        They are also supposed to uphold the Constitution.

        This is not me being snarky.Report

      • Avatar Rod in reply to Stillwater says:

        Something I meant to add was that DOMA isn’t a typical law wrt to this distinction. It wasn’t possible for a citizen to be arrested, tried, and punished for violating DOMA as it wasn’t a criminal statute. In this case enforcing DOMA meant not doing things like granting Federal benefits or suing states for not recognizing SSM or granting ss couples state benefits.Report

      • Avatar Stillwater in reply to Stillwater says:

        BP, after reading the provided linky, I have to second James comment:

        politically realistic if not logically fully coherent.

        It’s not coherent. Formally? It seems to me the President is obligated to enforce Federal law (as a matter of definition). Substantively? Ehhh.Report

      • Avatar Stillwater in reply to Stillwater says:

        Rod, why should the particular structure or content of a law be a relevant consideration in the formal requirements of the Executive obligations to implement and enforce Federal laws?

        I guess that’s where I get stuck. So I think the objection to his actions has some merit.Report

      • Avatar Rod Engelsman in reply to Stillwater says:

        Rod, why should the particular structure or content of a law be a relevant consideration in the formal requirements of the Executive obligations to implement and enforce Federal laws?

        It isn’t; that wasn’t a point I was trying to make. Rather, that when contemplating these issues, this isn’t a typical case to start with. A more typical law to contemplate would be the CSA (which is convenient since that’s where this thread started anyway).

        The CSA contains provisions which make it a crime for individuals to engage in certain activities. Mr. Jones has engaged in these activities, was caught by the police, tried and sentenced, and is now mounting an appeal to the Supreme Court. The question at issue is specifically whether Mr. Jones is, in fact, guilty of violating the CSA. The DOJ has a constitutional duty to prosecute the case and argue for the government in this appeal. Mr. Smith has already gone through that process and lost his appeals on the merits. Now he is mounting a challenge to the constitutionality of the CSA. I would argue that if the administration does not believe the CSA to be constitutionally valid that they are under no obligation to defend the law.

        There is no logical, legal, or constitutional inconsistency in the Executive simultaneously vigorously prosecuting the case against Mr. Jones while declining to defend the CSA. That’s because these court procedures are exploring two totally different questions. To whit, Has Mr. Jones violated the law as written? and Is the CSA consistent with the Constitution of the U.S.?

        I guess that’s where I get stuck. So I think the objection to his actions has some merit.

        Well, yeah, that’s where we’re stuck. You believe that Enforcing the Law = Defending the Law, whereas I see them as two separate things. I suspect we may also differ in our interpretation of the phrase, Co-Equal Branches of Government.

        What if Congress believes that a particular law is unconstitutional, what is their remedy? Well, they can repeal or change the law, right? What if the Court believes a law is unconstitutional? They can strike it down, right? What if the Executive believes a law is unconstitutional? According to your logic, not a hell of a lot. They are apparently still obligated to enforce the law; arresting, trying, and imprisoning people under the law. And if the law is challenged in Court, apparently they are required to vigorously defend the law as well. As near as I can tell, they effectively aren’t allowed to even express an opinion on the law other than “It’s Constitutional.” That doesn’t sound very Co-equal to me.Report

      • Avatar Stillwater in reply to Stillwater says:

        That doesn’t sound very Co-equal to me.

        Co-equal doesn’t mean that each branch has an equal say in all phases of shaping, enforcing and adjudicating laws. That’s a strange conception of the term, it seems to me.

        Co-equal means that branch has equal power to function according to it’s mandate without interference from other branches to act as a check on the other institutions.

        Formally, anyway.

        But hell, maybe I’m confused about all this and “coequal” means the judiciary can write legislation and the executive can decide court cases.Report

      • Avatar Rod Engelsman in reply to Stillwater says:

        Co-equal doesn’t mean that each branch has an equal say in all phases of shaping, enforcing and adjudicating laws. That’s a strange conception of the term, it seems to me.

        Co-equal means that branch has equal power to function according to it’s mandate without interference from other branches to act as a check on the other institutions.

        Okay, let’s run with that. Just what are those mandates and where do they come from? Well… from the Constitution, at least we would hope so right?

        Formally, anyway.

        Thanks, That’s right. Now the Legislature clearly has the power to make law. No one’s disputing their role in this play. And the Executive enforces the law enacted by Congress as well as just working the machinery of government in general, and the Judiciary settles disputes and, in particular, the Supreme Court acts as the Court of Final Appeal.

        Now the question arises, How and by Whom is it to be decided if a particular Act of Congrefs comports to the limitations and requirements set forth in the Constitution? Who, finally, is to guard the henhouse? Well, it’s clearly laid out that such questions will be decided by the Supreme Court with the Executive strenuously defending such laws as the Agent of the Congrefs. It says so right here in… [looking… looking…] Crap! It doesn’t say that. The Constitution is utterly silent on that question.

        In point of fact, the SC arrogated that power unto itself in the Marbury vs. Madison decision of 1803. Okay, so let’s charitably assume that what’s going on here isn’t just a naked power grab by the only unelected branch of government and that there’s actually some logical rationale for them to have the ability to so thwart the will of the People as expressed by their duly elected representatives. What would that principle be? It seems to this poor ignorant interlocutor that this seems closely related to the principle of jury nullification. An important difference being that juries are also Of The People while the Court is Unelected and, indeed, enjoy lifetime appointment.

        Now we move to the Executive. You claim that the DOJ has a clear mandate to defend laws against Constitutional challenge. Well, I’m not even going to bother looking because it hardly seems likely that the Constitution will specify the role of the Executive for a process that isn’t even mentioned therewith, correct? So what’s the general principle you’re invoking? That the DOJ, and by extension the Executive, is simply the Legislature’s bitch? Or perhaps, more charitably, that the Executive, through the DOJ, represents the Government as a whole? But the SC is also part of the Government, right? So the DOJ is representing itself in front of itself on behalf of… itself? Hoping that itself will make a decision favorable to itself? The mind boggles. This would all make more sense if the DOJ were arguing in front of some sort of special Constitutional Court that was in some sense outside of Government itself. Or hell, maybe these things should be decided at the Hague. Just spitballin’ here.

        Given that the whole business of Judicial Review is an extra-Constitutional procedure justified by some general principle like jury nullification or somesuch, I would argue that the Administration declining to defend DOMA was an exercise of another general principle akin to prosecutorial discretion.

        But hell, maybe I’m confused about all this and “coequal” means the judiciary can write legislation and the executive can decide court cases.

        I’m suggesting nothing of the sort. Just that the principals of all three branches of government take an oath to protect and defend the Constitution of the United States. They all have that responsibility co-equally. They have different roles to play and they all get a bite at the apple. DOMA wasn’t defeated because the Administration nullified it. It was defeated because the Court struck it down. The administration fully enforced the law since they fully followed the provisions of the law that applied to them. They just felt it was unconstitutional and declined to defend it before the Court.

        Defend =/= Enforce. They’re separate concepts, not even close synonyms or particularly related. I would ask you to explain how the one is a part of the other because I just don’t see it.Report

      • Avatar Patrick in reply to Stillwater says:

        One can legitimately argue, I would think, that if you’re not going to argue with Marbury… the Executive Oath means, you know… “If I don’t find this law to be Constitutional, I ought to file suit *against* this law in SCOTUS”.

        Not *defend* it, that would be (if anybody) *Congress’s* job. “We think this law is Constitutional, we passed it”.

        Curiously; hey… if the Executive challenged the Constitutionality of a law, could SCOTUS deny standing?

        How?Report

      • Avatar Rod Engelsman in reply to Stillwater says:

        To have standing I would think the Administration would have to show how the administration itself was harmed. I can imagine some laws that might do that… maybe. It would have to be something along the lines of restricting the power of the Executive to do something that has previously been in their purview.Report

      • Avatar Patrick in reply to Stillwater says:

        I’m not so sure. Well, nobody’s ever tried to go that route, so I’m not even certain what the legal argument would be.

        The denial of standing is questionable anyway, the way it is used now (caution: legal neophyte opinion there). But regardless, I don’t know how SCOTUS would respond.

        It would be a precedent-setting case, I’d imagine.Report

      • Avatar Stillwater in reply to Stillwater says:

        Hmmm. OK. Got it. I agree with your distinction between enforcing and defending. There is quite a bit of wiggle room in there. And as you say, it’s not the case that by not defending a law in court the Executive is determining that law is unconstitutional, nor is the Executive necessarily acting unconstitutionally by doing so.

        Hmmm, again, tho. I’m still puzzled by the formal aspects of all this. It seems to me that when a President signs a bill into law, he’s committing the Executive to an obligation to not only enforce that law but defend it as well. And it seems strange to me that a subsequent President who believes the law is unconstitutional – for whatever reason! – is thereby justified in not defending that law from challenges in court.Report

      • Avatar Rod Engelsman in reply to Stillwater says:

        Still, I’m truly glad we’ve got this far in the discussion. As to your second point… well, for one thing it’s not necessarily the case that a prior President actually signed the bill. Congress could have over-ridden a veto, for example. But such technicalities aside, I’m not sure why you believe that the Executive is special that way. After all, the current Congress has held something like forty votes to repeal Obamacare so it’s not like the Legislature can’t change its mind. And even if you want to hold that technically this is a different Congress than the one that passed the PPACA, it’s still the case that Congress can pass a bill on Monday, change its mind, and repeal it on Thursday. And while stare decisis [sic?] is a thing, it’s only a general principle. The Court can and does reverse prior decisions. So why do you believe that the Executive can’t change course as well?

        And all this assumes a kind of unbroken continuity of the Executive from, I suppose, George Washington to the present. Which is, I guess, sort of true in the same sense that the Government itself has that continuity. And Justices of the SC will often speak about prior decisions that happened many decades ago as “We decided thusly.” But you can only take that kind of reification of the institution so far.

        And let’s be totally real here. If the law in question had been something passed by a Democratic Congress that Boehner didn’t like much and something that Obama wasn’t terribly fond of either and the administration had declined to argue in its defense, would this issue even have been a thing?Report

  4. Avatar Rod Engelsman says:

    And now I’m going to piss you off, Jaybird. I think the libertarians have a lot to answer for wrt to the drug war.

    I remember when, for example, possession of pot was a minor misdemeanor in Colorado. They would pour your bag out onto the ground, kick it around so you couldn’t scoop it back up, and then hand you back the empty baggy along with a ticket for $10. This was back in the late ’70s. Mind you, the War on Drugs had already been declared back in the Nixon era, but it took Saint Ronney to kick it up into high gear. Interestingly, the same time they began espousing “Supply Side” economics, they began to apply “Demand Side” drug law enforcement. So long $10 pot tickets; hello mandatory minimum sentencing.

    What does this have to do with libertarians, you ask? Back in the day (’70s and early ’80s) it was still possible to find substantial numbers of Democratic congresscritters* who supported legalization or at least didn’t support ramping things up ala Reagan (Just Say, No!). But then, thanks largely to the personal popularity of Reagan, and then later, the right wing noise machine that our own Mr. Kelly writes so eloquently on, it simply became politically untenable for any Democratic politician to be perceived as either “soft on crime” or “soft on defense.” And unfortunately, supporting ever tougher, even draconian drug laws was being “tough on crime.”

    And what were libertarians doing during all this? Well, I can only speak for the ’90s because that’s when I was a libertarian but I don’t imagine things were much different before or following. They would spend about 3 1/2 years bellyaching about the evils of government in general and how their isn’t a “dimes worth of difference” between the major parties, you know, standard libertarian fare, then during the run-up to an election hold somber debates over whether to “waste” a vote on Harry Browne or hold their collective noses and vote Republican. Judging from the typical electoral returns and surveys estimating the number of libertarians in the body politic it seems most chose the latter option. The suggestion to consider voting for a liberal democrat summoned forth the crosses and garlic, never mind the “not a dime’s worth of difference” rhetoric.

    What happened was that you (and I don’t necessarily mean you personally, JB, since I assume you were too young back then) deliberately, and with considerable debate and forethought, cast your ballots (the ones that deigned to vote anyway) for the politicians who brought us the ever-escalating drug war, who fed the ravenous maw of the military-industrial complex, and who had the Patriot Act all ready to go mere days after 9/11. Why? Because you were so deathly afraid that someone might pass an environmental regulation or maybe raise the taxes on rich folks to pay for some kid’s school lunch.

    Over the last several decades you guys have made your priorities clear as day. You may hate the War on (some people that use) Drugs and the War on (civil liberties in the guise of…) Terrorism and even the real shootin’ wars on brown people. But you don’t hate none of that nearly as much as the War on Poverty. You’ve proven that over the years by your revealed preferences in the voting booth. There was a time that the liberal progressives could have used your help, but you sat on your hands, whined on the Internet, wrote position papers at the Koch-funded Cato institute and then held your nose and voted for Republicans.

    /rant off

    * Actually, a few still exist. They are all in the Democratic Progressive Caucus. And they get absolutely no love from libertarians to this day.Report

    • Avatar Jaybird in reply to Rod Engelsman says:

      Well, here’s my various problems: let’s say that ending the drug war is the thing I care about most… and let’s say I’ve got three choices in front of me. I’ve got “The Republicans”, “The Democrats”, and “Third Party”.

      Which is the way to go? Please note, if you point out such things as “teaming up with The Democrats means that you get to team up with the Democratic Progressive Caucus”, you should be prepared to deal with the counter-argument of how you also have to team up with, oh, Obama and his handling of the Ogden Memo.

      Because it seems to me that any argument you might feel at lobbing at Libertarians with regards to their willingness to sell themselves out are universally applicable (that is: equally applicable to those members of the DPC)… and any argument that is universally applicable seems to me to be without much bite at all.

      In any case, I’ll go back to voting for my Harry Brownes and you can go back to voting for your Obamas and you can point out how Obama not doing anything is the fault of the Libertarians and perhaps even the DPC.Report

      • Avatar Rod Engelsman in reply to Jaybird says:

        Well, Jaybird, I was exploring this in some historical context. So when you say,

        Which is the way to go? Please note, if you point out such things as “teaming up with The Democrats means that you get to team up with the Democratic Progressive Caucus”, you should be prepared to deal with the counter-argument of how you also have to team up with, oh, Obama and his handling of the Ogden Memo.

        I say, “Well, yeah. Now.” My point is that libertarians, by historically cuddling up preferentially with conservatives because of economic issues, have contributed to this situation being what it is today. There’s a path dependency to all this. First of all, Obama’s and Holder’s prosecutorial discretion isn’t unlimited. Hell, if you listen to Stillwater, they aren’t even really supposed to have or express, much less act on, any opinion other than “Book ’em, Danno!” Despite the fevered, conspiratorial imaginings of some in the TeaBilly Circus, he isn’t a dictator or aspire to be one. He can’t just say, “Fuck it, pot’s legal! Smoke ’em if you got ’em!”

        I mean… I mean… what the fuck do you actually expect him to do? What do you really think he can do? And finally, what do you seriously expect the first black president, who admits to smoking pot as part of his “Choom gang” as a youth, can actually get away with politically? Maybe this isn’t the hill he’s willing to die on and throw everything else away for. Health care reform proved to be enough of a bitch, thank-you very much.

        Because it seems to me that any argument you might feel at lobbing at Libertarians with regards to their willingness to sell themselves out are universally applicable (that is: equally applicable to those members of the DPC)… and any argument that is universally applicable seems to me to be without much bite at all.

        No. Because the DPC didn’t vote for Republicans. Hell, the DPC didn’t become Republicans like the Libertarians did. The DPC just didn’t have enough firepower to stop them. And part of the reason for that (a minor reason numerically, but still) is that good, saintly Libertarians like Ron Paul not only caucused with Republicans but were Republicans. That’s what the “-R” after their name means.

        Seriously, am I blaming Libertarians for the drug war, et al? Not really, that would be giving you guys too much credit when in fact, you’ve always been a pretty ineffectual, politically impotent bunch. But on the other hand, how many elections are won or lost by 4 or 5 percentage points? How much of a difference might a left/libertarian alliance made over the years, starting in the Reagan era? Maybe nothing; maybe the political climate overall was such that where we are now was just inevitable. Or maybe not; we’ll never really know.

        And by “never” I mean we’ll likely never find out going forward either. Because for all your lofty rhetoric you don’t really care that much about civil liberties, not compared to the utter joy that fills your heart over cutting regulations, taxes, and welfare. Again, revealed preferences.Report

      • Avatar Stillwater in reply to Jaybird says:

        Hell, if you listen to Stillwater, they aren’t even really supposed to have or express, much less act on, any opinion other than “Book ‘em, Danno!” Well, no, that’s not my point. It’s that the Executive can’t say “Fuck it, pot’s legal! Smoke ‘em if you got ‘em!”

        The CSA is the law of the land and formally the Executive has an obligation to uphold that law. They can tweak it at the edges – prosecutorial discretion! – but they can’t unilaterally decide to not enforce a Congressional law.

        Formally, anyway.Report

      • Avatar Patrick in reply to Jaybird says:

        In my estimation, the justification for the CSA is that society has a vested interest in preventing particular sorts of abuse of particular lists of substances.

        To some extent, I’m okay with this.

        As practiced, the implementation of the CSA has been more “if a sufficiently large number of monied interests or public outrage at perceived damage pushes a Congresscritter to make a change in the CSA, well, that’s how the CSA gets changed.”

        Which is something different from how, say, the EPA works. The EPA’s problem domain is set by Congress, but how they handle things inside the problem domain is best handled by, you know, expert testimony and whatnot.

        I don’t recall a bunch of medical doctors agitating towards putting pot on the CSA (in fact, I do recall a bunch of doctors agitating and testifying against that, also against heroin as regulated, etc.) I don’t recall substantive debates about health care costs or anything.

        It was more of a hysteria. “Reefer Madness” is not exactly scientifically accurate. I could throw in some anecdotes about Hearst and/or DuPont, but I haven’t research this enough to lay any credence behind those anecdotes.

        I don’t mind Congress saying, “Hey, experts should regulate this stuff”, and providing a framework for regulation and oversight to make sure it’s not crazy.

        I do mind Congress saying, “Hey, let’s put stuff on or off this list based upon how well we can leverage popular opinion about it to get elected next go ’round”.Report

      • Avatar Jaybird in reply to Jaybird says:

        What do I expect him to do?

        Well, there are two levels here. I expect him to say something vaguely about making sure that the law is upheld *BUT* he also understands that there is some degree of “the people speaking” here and that while he cannot *IGNORE* the law, he can certainly prioritize differently.

        Then, when it comes to “what to do”, he has the option of prioritizing.

        I mean, it’d be batshit crazy to expect him to give out “waivers” for a law that was passed by Congress, right?

        To the degree that the issue is one of how drugs have been scheduled… what would be required to reschedule marijuana? From off the top of my head, it seems to me that Marijuana would be schedule IV (though I can appreciate arguments that it should be a III). To what extent is the DEA responsible for the scheduling of drugs? That is, to what extent is the scheduling of drugs something that the executive has oversight for?Report

      • Avatar Patrick in reply to Jaybird says:

        I really don’t see how you can argue that a weed is covered under interstate commerce by nature.

        I mean, maybe if it’s bought, sold, or processed across state lines, sure. But, it seems like “growing a plant for your own use” ought to be a somewhat inarguable defense.

        But then, yeah, that one is definitely just me, I think.Report

      • Avatar Rod Engelsman in reply to Jaybird says:

        You have to consider the politics of all this, JB. I mean… right now you have several members of Congrefs publicly calling for his impeachment. Over what, I have no idea. Some incoherent TeaBilly b.s. As things stand it’s just more noise.

        Now suppose Jaybird’s dream Obama does what Jaybird suggests in such a way as to make Jaybird happy. What happens? He spends every day of the rest of his term fighting a real honest-to-atheist-God impeachment proceeding. They’re just looking for an excuse; the last damn thing he needs to do is give them that excuse. They may even succeed in bouncing him from office, after all.

        And all to accomplish… what? A change in prosecutorial policy that’s reversed January 21, 2017?

        I think you over-estimate how popular such a move would be overall.Report

      • Avatar Rod Engelsman in reply to Jaybird says:

        I really don’t see how you can argue that a weed is covered under interstate commerce by nature.

        I mean, maybe if it’s bought, sold, or processed across state lines, sure. But, it seems like “growing a plant for your own use” ought to be a somewhat inarguable defense.

        But then, yeah, that one is definitely just me, I think.

        Devil’s Advocate: And where did you get the seed from? Hhhmmm???

        Don’t get me wrong; I want it legalized as much as the next guy. But it ain’t gonna happen that way.Report

      • Avatar Patrick in reply to Jaybird says:

        Devil’s Advocate: And where did you get the seed from? Hhhmmm???

        Hemp was grown in Kentucky well before it was made illegal. It’s basically an invasive plant that’s found still in the wild all over the U.S.

        It’s not a native plant, but I’d imagine you could find a seed without going to an out-of-state seller.Report

      • Avatar Jaybird in reply to Jaybird says:

        Now suppose Jaybird’s dream Obama does what Jaybird suggests in such a way as to make Jaybird happy. What happens? He spends every day of the rest of his term fighting a real honest-to-atheist-God impeachment proceeding.

        To be perfectly honest, I do not think that Obama would be impeached for kicking in the doors to Super 8 motels and shooting the dogs that belong to meth chefs rather than kicking in the doors to dispensaries.

        I mean, sincerely, I don’t think that that is something that would happen. Like, even in back room discussions. “What else ya got?” would be the rejoinder to someone making that suggestion.Report

      • Avatar Jaybird in reply to Jaybird says:

        I really don’t see how you can argue that a weed is covered under interstate commerce by nature.

        The argument used in Raich was that even if Raich were not given the leaves of this weed by friends who grew it using California seeds, soil, water, and sunshine, she would presumably be buying it on the black market which *WOULD* be interstate commerce, and, thus, her friends giving her the leaves of this weed qualified as interstate commerce.

        Fun question using the above assumptions: what isn’t interstate commerce?Report

      • Avatar Patrick in reply to Jaybird says:

        I’m pretty much on board with “Raich is clearly decided wrongly”.

        In fact, I’m pretty much on board with Raich redefining commerce in a way that’s far more fundamentally wrong, from a Constitutional standpoint, than the common criticism of Roe as “inventing a right” that didn’t exist.Report

      • Avatar Rod Engelsman in reply to Jaybird says:

        Ditto this. It’s all backwards given that the original purpose of the Commerce Clause was to prevent states from engaging in trade wars with each other, to form a unified economic trading bloc. It arguably should have been worded differently.

        On the other hand, if there’s a word that more neatly encapsulates the essence of the Fourth Amendment than “privacy” I’ve never heard it. But in the 18th century to say you had a right to privacy would have been saying you had the right to use a toilet. That’s where we get the colloquial synonym “privy” for bathroom. Language drift in action.Report

      • Avatar Rod Engelsman in reply to Jaybird says:

        The argument used in Raich was that even if Raich were not given the leaves of this weed by friends who grew it using California seeds, soil, water, and sunshine, she would presumably be buying it on the black market which *WOULD* be interstate commerce, and, thus, her friends giving her the leaves of this weed qualified as interstate commerce.

        While I don’t like the result any better than you do, in fairness it should be noted that much of the illicit marijuana trade is conducted across state lines as well as international borders. And that trade would be legitimately subject to Federal regulation by even the most limited interpretation of the Commerce Clause. Invalidating a Federal statute on the basis that maybe the weed didn’t cross state lines isn’t much better than upholding it on the basis that it might have in other circumstances.

        It reminds me of the maxim that petroleum is a worldwide market and events that affect the price of oil anywhere end up affecting the price of oil everywhere. It doesn’t really matter whether a particular barrel of oil crosses a border or not, it’s still part of that worldwide market.

        There are better arguments against the drug laws than constitutional technicalities.Report

      • Avatar Patrick in reply to Jaybird says:

        I look at the Interstate Commerce clause and the ninth and tenth and what I get out of it is that the feds have the power to overrule the states when it comes to creating laws that interfere with the other states.

        It’s unclear to me why the CSA is covered, as its typically argued.

        Certainly, it seems pretty explicit to me that states passing laws that decriminalize drugs that are on the federal list is a case of the states exercising the tenth. The feds can go ahead and leave MJ on the CSA and pursue any and all illegal interstate commerce of pot between all the other states. But unless people start growing pot in Colorado and shipping it to Texas, where it’s illegal… the feds have no grounds to interfere with Colorado legalizing pot.

        To compare/contrast, I look at the 14th and the Commerce clause and say that it gives the feds the power to broadly interfere with commerce provided there’s an equality issue.

        Thus, they can pursue whatever employment-business related discrimination they want.

        I can see an argument that the feds can establish a federal minimum wage because state minimum wages have a direct effect on interstate commerce. For that matter, I can see a legitimate argument that the feds can forbid certain types of taxes, if they wanted to do so. In both cases, though, you’d have to make that case, not just assert it.

        The CSA seems, to me, to be a case of simply asserting something that needs to be made.Report

      • Avatar Jaybird in reply to Jaybird says:

        Here’s another fun question: why was the 18th Amendment necessary?Report

      • Avatar Rod Engelsman in reply to Jaybird says:

        I’ve been thinking about this and I see an interesting challenge that could hopefully make it’s way up to the SC on this. The Colorado (and I assume Wash. but I don’t know as much about their laws) legal mj system is specifically designed to build a strict wall of separation between the legal and illicit mj trade. For all intents and purposes then, the legal weed in Colorado is a fundamentally different product than the illegal weed. I wonder if that separation could be successfully used as a basis for invalidating the legal argument of Raich?

        It would be interesting to hear the Fed’s argument given that the only possible effect on the illicit trade would be to reduce such trade.Report

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