Morning Ed: Planet Earth {2016.11.30.W}

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Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.

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  1. Avatar LTL FTC
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    As a matter of fact, I know a (white) Burning Man veteran who went to Standing Rock. He’s been very clear on his voluminous social media posts about his Brave Choice (TM) how important it is to be respectful and to contribute at the camp instead of just soaking up the experience.

    Then again, his personal brand as a DJ (of course) is built around being a woke white dude. He has been linking to Everyday Feminism articles in between his SoundCloud remixes for years.

    I especially like the example in the article about the non-fluoridated water. It really is impossible to hold a protest on the left without a dozen side issues eventually consuming the whole thing and the most fringe-y of those issues getting the most media attention.Report

    • Avatar Saul Degraw in reply to LTL FTC
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      There is something about “woke” as used in current slang that really gets on my nerves.

      And I’m becoming an old person.Report

    • Avatar notme in reply to LTL FTC
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      It’s terrible when those white posers show up and ruin everything. Haven’t white people done enough damage already?Report

    • Avatar LeeEsq in reply to LTL FTC
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      Protests against Iraq II were really weakened by the inability to keep it about Iraq II only rather than Western imperialism and global capitalism in general. Staying on message is important at times and the inability of the Left to be strategic about things is frustrating.

      As to Standing Rock, it was probably inevitable that they would be treated by some people as a reason to have fun. Humans are social and when you have a lot of people together and doing things like chanting and stuff than your going to get people seeing it as a reason to have a good time. Especially if they aren’t that connected to the issue.Report

  2. Avatar Kolohe
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    says:

    Florida – meh, I can’t get too full of the feels for people that bought expensive waterfront homes in an area that’s never been ecologically sustainable for large scale human habitation.Report

    • Avatar Oscar Gordon in reply to Kolohe
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      South Florida has always been salt marshes and the like, just like LA has always been desert. Just because we managed to make the land habitable by being clever doesn’t mean the nature of the local conditions actually changed.Report

  3. Avatar notme
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    says:

    Water as a “right”? The list just keeps on getting longer. I wonder why it took this long to invent it as a new right?Report

    • Avatar J_A in reply to notme
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      In the 1980s/90s when privatization of state utilities was a thing, water utilities were thrown in the mix. In most countries the newly privatized utilities crashed and burned because no politician was willing to countenance the image of poor people being denied water (and sanitation) and dying of thirst (or collera epidemias because sewers could not be flushed)for lack of payment.Report

      • Avatar LeeEsq in reply to J_A
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        Some things really need to be done by government because putting them under the logic of the market has horrible results.Report

        • Avatar Kolohe in reply to LeeEsq
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          says:

          @j_a @saul-degraw

          Zeus on a tostito, privately owned utilities happen all the time without catastrophe, even water works. (I myself lived in a ‘blue’ political area with a private water utility until a little over a year ago)

          But sure, fine. I’ll raise ya – since food is so important, the state must immediately seize every farm, garden, grocery store, and bodega. Because the logic of the market (even a market with significant govt regulation and active management), doesn’t work amirite?Report

    • Avatar LeeEsq in reply to notme
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      People have a right to live. Do you think that denying people basic necessities, and water is one of the most basic and essential of necessities, is a moral thing?Report

      • Avatar notme in reply to LeeEsq
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        Let’s follow your logic to its conclusion. If folks have a right to basic necessities for life like water, then they should also have a right to food, electricity, shelter and clothing, right? Who is going to pay for the provision of all these rights to people who can not support themselves?

        I would also say that arguing that denying people basic necessities is immoral is a totally different argument than saying folks have a right to something like water. So yes, if you don’t pay your water bill the company should be allowed to shut off your water or electricity.Report

        • Avatar Damon in reply to notme
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          Any “right” that incurs an obligation from someone else, isn’t a right.Report

          • Avatar RTod in reply to Damon
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            Should access to water be a right?Report

          • Avatar Don Zeko in reply to Damon
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            So you’re not into private property?Report

          • Avatar Oscar Gordon in reply to Damon
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            Access to the basic necessities is a right. No one should be denied water, etc. because they are part of a disfavored demographic, or because they are an asshole, or because a corporation needs to meet quarterly targets.

            That said, when it comes to a utility like water/sewer, thinking about it as a right, rather than a question of infrastructure is thinking about it wrong. The pipes are in place, as are the pumps & valves. The delivery system is a public expense, hence access is a public right. A water bill is less a fee for services rendered than it is a tax to support a specific public system. We treat it as a fee because water is a scarce resource and the fee structure allows the utility to (ideally) leverage market forces to control demand.

            We know about how much water a person needs per day to maintain hygiene & hydration, and that amount is something that can simply be factored into whatever base rate is used (the system is going to deliver the water anyway, it costs fractional pennies to pour a glass of water or fill a cooking pot). It’s when people are watering lawns, or filling large baths or pools, that residential water use gets beyond what is necessary for life.Report

            • Avatar J_A in reply to Oscar Gordon
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              This is correct. The water bill is paying (over time) for the delivery infrastructure, not for the commodity itself. The short-term marginal cost of residential water (absent pools and irrigation) is almost nil.

              How we pay for the pipes, and whether the government would allow to cut the commodity delivery to those that do not want to pay for the infrastructure is the issue.

              In that respect, the commodity “water” is much cheaper than the commodity “electricity”, but the delivery infrastructure is much more expensive. How to allocate the infrastructure and how to subsidize those than can pay for the commodity but not the delivery infrastructure is what we are discussing.Report

          • Avatar dragonfrog in reply to Damon
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            Can you find an example of a right that incurs no obligation from someone else?Report

            • Avatar Jaybird in reply to dragonfrog
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              Freedom of Speech.

              I mean, if you define it as “your right to say something without being thrown in jail for it”.

              See also: “freedom of the press”.Report

              • Avatar dragonfrog in reply to Jaybird
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                So does “obligation to allow” not count as an obligation?Report

              • Avatar Jaybird in reply to dragonfrog
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                Is that how we see police not showing up at your house, not shooting your dog, not dragging you out of your home in handcuffs, and not imprisoning you for criticizing Trump as the police meeting an obligation on their part?

                This whole “not doing something is actually doing something” trend is something that I actively dislike.Report

              • Avatar dragonfrog in reply to Jaybird
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                It’d be nice if the police saw it that way, rather than seeing a failure to brutalize protesters as a failure to meet their obligations.

                What about elected representatives – do they have an obligation to fight well-funded police unions, to get their police forces under control so they stop suppressing freedom of speech, even when that is likely to result in their losing the next election? Or can they just go “Hey, don’t look at me, I’ve never put on a riot helmet in my life?”Report

              • Avatar Jaybird in reply to dragonfrog
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                says:

                (holds hands up)

                Hey, I just thought we were talking about “the right to free speech” meaning that you could criticize Trump without incurring an obligation on the part of the police to fail to shoot your dog.Report

              • Avatar dragonfrog in reply to Jaybird
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                Please be advised that due to your recent letter to the editor, the Department of Poor Marksmanship will be sending a detachment of storm troopers to your home to fail to shoot
                1) yourself
                2) your dependent children, if any
                3) your pets, if anyReport

            • Avatar Mike Schilling in reply to dragonfrog
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              The right to bear arms has no external costs, other than the additional risk of getting killed.Report

          • Avatar Stillwater in reply to Damon
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            Any “right” that incurs an obligation from someone else, isn’t a right.

            Positive rights. It’s a real thing.Report

            • Avatar Joe Sal in reply to Stillwater
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              Real thing? great, cut off 2 pounds of it and mail it to me tomorrow.Report

              • Avatar Stillwater in reply to Joe Sal
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                See, Joe. This is why Patrick wrote that comment to you last night. And why having a discussion is frequently impossible.

                Positive rights are a real thing. Just as much as negative rights. They impinge on your reality!

                That you reject them outa hand doens’t really add anything to the discussion. (By the way, I’m a pragmatics guy about all this stuff, hence, a “social constructionist” in your terminology tho I reject the accuracy of that designator.)Report

              • Avatar Joe Sal in reply to Stillwater
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                Patrick and I have been around the maypole before and his respect of my position is about what I would expect of him.

                I lost a significant amount of respect for him the last two times we tangled, and for him to come in out of his wayward blue to take a swing at me really sucks.

                The only reason I commented the way I did above, is often we start framing social constructed things such as ‘rights’ as being tangibly real outside the scope of what they are.

                You threw a curve ball at me a couple days ago about complex parameters of economics. Within the next few months I expect I will have to again model the difference between a social construct reality, and something existing physically in reality.

                At least you and I have enough patience and engagement we can unpack our positions over extended time frames. I appreciate you, even If I give you a hard time, or if on any giving day I fishing suck at being a good opponent.Report

              • Avatar Stillwater in reply to Joe Sal
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                Well, that’s much more charitable than I was expecting in response. Thanks, for the personal message as well as your view of the long game here.

                {{But to go back to Patrick for a sec., I don’t think I’m alone in saying that Patrick is one of the few people here who ALWAYS evaluates an argument on its merits, irrespective of priors or emotional commitments.(Or appears to, anyway 🙂 So he’s sortuv a barometer in terms of reasoned debate and so on. Adding: not that you necessarily agree with me about that.}}Report

              • Avatar Joe Sal in reply to Stillwater
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                Oh I know Patrick holds some sway.

                He has offered some good work in the past, but where he and I are, right now, is not high in the mutual respect department. Last night made it worse, not better.Report

        • Avatar Chip Daniels in reply to notme
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          Actually, there is a strain of Catholic social teaching that yes, basic necessities are a right, and society is in fact obliged to provide.

          Either by creating sufficient opportunity, or by direct assistance.

          The idea (relating to water in fact) is that there is no natural logic for the private ownership of land. God didn’t assign parcels to everyone, and the Lockean logic of land ownership doesn’t create any moral imperative.

          Private ownership of land is just a utilitarian device to facilitate the workings of society.

          If the workings of society make it difficult or impossible for people to provide for themselves, society has a moral obligation to provide.

          So, if there isn’t a stream or pond or readily available source of water, yes, society does have a moral obligation to provide water to everyone.Report

        • Avatar Kazzy in reply to notme
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          You do realize that we already provide people with support in accessing these various necessities, right?Report

          • Avatar notme in reply to Kazzy
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            Providing people with support in accessing these various necessities isn’t the same as declaring that they are a “right.” Declaring that something is a right raises the legal stakes considerably.Report

      • Avatar Michael Cain in reply to LeeEsq
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        Let me ask about a specific example. 30 years ago, Colorado’s population was 3.3M and the water supplies were strained. Since then, 2.2M more people have moved in and the water supplies are even more strained. Is there a point where Colorado gets to put up a fence and say, “The water’s over-committed. More people moving in means less water for the people already here. Stay in Ohio, or move somewhere else, but the Colorado door is closed.”? Or is your position that people are due basic necessities no matter where they choose to relocate?Report

    • Avatar Chip Daniels in reply to notme
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      says:

      Water as “property”?

      Ridiculous!

      It falls from the sky, it lies in underground pool that no one can even map, flows in rivers and respects no manmade boundary.

      Water belongs to everyone, thats just natural law.Report

      • Avatar Damon in reply to Chip Daniels
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        Funny…cause I can think of several “disputes” over who “owns” water in the west….Report

      • Avatar Michael Cain in reply to Chip Daniels
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        It falls from the sky, it lies in underground pool that no one can even map, flows in rivers and respects no manmade boundary.

        Given that you live in California, may I assume sarcasm tags here? Most of the American West’s population depends very much on forcing water to respect man-made boundaries (both spatial and temporal). Much of the water coming out of your tap in LA would have preferred to go (or stay) elsewhere, but Mulholland and others imposed their wills on it.Report

      • Avatar Francis in reply to Chip Daniels
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        “It is hereby declared that because of the conditions
        prevailing in this State the general welfare requires that the water
        resources of the State be put to beneficial use to the fullest extent
        of which they are capable, and that the waste or unreasonable use or
        unreasonable method of use of water be prevented, and that the
        conservation of such waters is to be exercised with a view to the
        reasonable and beneficial use thereof in the interest of the people
        and for the public welfare.

        The right to water or to the use or flow
        of water in or from any natural stream or water course in this State
        is and shall be limited to such water as shall be reasonably
        required for the beneficial use to be served, and such right does not
        and shall not extend to the waste or unreasonable use or
        unreasonable method of use or unreasonable method of diversion of
        water.

        Riparian rights in a stream or water course attach to, but to
        no more than so much of the flow thereof as may be required or used
        consistently with this section, for the purposes for which such lands
        are, or may be made adaptable, in view of such reasonable and
        beneficial uses; provided, however, that nothing herein contained
        shall be construed as depriving any riparian owner of the reasonable
        use of water of the stream to which the owner’s land is riparian
        under reasonable methods of diversion and use, or as depriving any
        appropriator of water to which the appropriator is lawfully entitled.”

        From such laws are conflicts born. (The quoted language is from the California Constitution, Article 10, section 2.)Report

    • Avatar Kazzy in reply to notme
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      says:

      So guns are a right but not water?Report

      • Avatar Brandon Berg in reply to Kazzy
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        Those are two entirely different meanings of the word “right.” Nobody claims that people have a right to be provided guns by the government for free. And nobody denies that people have the right to buy water at market price.

        I mean, to a reasonable first approximation. There’s no position so out there that someone won’t take it.Report

        • Avatar Kazzy in reply to Brandon Berg
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          Which I think brings us to @rtod ‘s question about access to water being a right.

          A complicating factor is how anyone comes to own water… or, more specifically a water source.

          I know that many places in the country have laws about collecting rain water (basically making it illegal). So, right there, you have some restrictions on access to water.

          As for water at market price… that assumes private actors, no? How did these private actors come to possess access to water? I mean, how does someone “own” a river and the water running through it?

          I’m not opposed to private property… but somewhere along the line a river that was owned by no one and the water than runs through it which is constantly refreshing became someone’s property, likely through means that are… less than market-ideal.

          Do I think people should be able to walk into any store and grab a bottle of FIJI off the shelf and bill the government… or just take it? No.

          But do I think the government should be involved in ensuring that all people have access to clean drinking water and regular sanitation? Sure. Does that make water a right? I dunno.Report

          • Avatar Michael Cain in reply to Kazzy
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            But do I think the government should be involved in ensuring that all people have access to clean drinking water and regular sanitation? Sure.

            How much? Cause that makes a big difference. A thousand gallons a month? Ten thousand? Long hot showers? Watering a flower garden? Is it location dependent? If a million people move in next door — essentially the situation in Front Range Colorado — do they have a right to water and sanitation even if it means people who had plenty for flower gardens before no longer do?Report

          • Avatar Stillwater in reply to Kazzy
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            I know that many places in the country have laws about collecting rain water (basically making it illegal). So, right there, you have some restrictions on access to water.

            Which goes to Chips point about water falling the sky.

            One thing I’d say is that the concept of property requires some sorta legitimate claim in order to be justified. A Lockean view is that property devolves from mixing ones labor with a natural resource: plant and tend the apple trees and you own the fruits of your labor. Short of a reductive account like that, we’re stuck with ad hoc norms and legalizations regarding ownership and transfer of rights and so on. (Adding: not necessarily merely ad hoc: pragmatics not only picks up the ball here but advances it pretty far down the field.)

            But, going back to a Lockean account of how this whole thing gets off the ground, how does a claim to a watershed have any merit except as the outright assertion of a property right requiring no sweat equity to validate?Report

          • Avatar RTod in reply to Kazzy
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            I know that many places in the country have laws about collecting rain water (basically making it illegal).

            Minor point here, but those places (Oregon is one) don’t really have laws about collecting rain water. Collecting rain water perfectly legal; that it isn’t is a right-wing Info Wars sort of misrepresentation of the laws.

            The laws prohibit the collecting of run off from rain and snow, because that run off is how the places we get the water we drink come from.Report

            • Avatar Kolohe in reply to RTod
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              Is the Center for American Progress an Infowars affiliate?Report

            • Avatar Stillwater in reply to RTod
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              Not here in Colorado. Well, not until recently. Merely collecting water from your rooftop was illegal and enforced. Now, the law permits (I think) two 55 gallon rain barrels of collection for the purposes of residential use. (Michael Cain would prolly know the specifics.)Report

              • Avatar Snarky McSnarkSnark in reply to Stillwater
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                What is the rationale for such a law?Report

              • Avatar J_A in reply to Snarky McSnarkSnark
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                Prior use.

                If you collect rain water from your rooftop, the water is not flowing into the stream where a user, senior than you, already has water rights. You cannot interfere with the water allocation of any user senior than you. Hence you cannot collect your roof water unless you (or your ancestors) did that before any other person ever took water from the stream your rain water drains into. If just one person did, he is already senior to you, and you cannot affect the water basin AT ALLReport

              • Avatar Kazzy in reply to J_A
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                While I understand that, it creates a system wherein we advantage those who were first into the pool (or, rather, those who were first acknowledged into the pool).

                Isn’t a huge part of the Dakota Access Pipeline about a new group disregarding the prior use of a (much more) senior group?Report

              • Avatar J_A in reply to Kazzy
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                Yes, we do create a system of allocating public goods as simple property to private actors by chronological order of capture (without even the need for the public to be compensated). (*)

                The Spanish (Roman) Law instead maintained that public goods, like mines, or water, are always public goods, and you can only use them via license

                (*) by capturing the water in your rooftop you are literally stealing water that BELONGS to someone else.Report

              • Avatar J_A in reply to J_A
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                It’s also the basis of the argument that the right to pollute the air is a prior use right, and that polluters have a right to pollute as their property, and that forcing them to abate their emissions is a Taking.

                Mind you, is not the existing polluting facility that it’s grandfathered only until its torn down. It’s your right to continue emitting the same amount of pollution for ever, even through a new facility.

                Hence Cap and Trade is granting existing polluters the right to pollute, and them selling those rights in the market in perpetuity.Report

              • Avatar PD Shaw in reply to Kazzy
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                While it advantages prior users, in water-restricted areas there would be little or no development if the town/mine/farm could not rely upon the existing water sources. Who would invest in any of those if some joker with hundreds of rain barrels moved upstream? Hate those guys.Report

              • Avatar Oscar Gordon in reply to Snarky McSnarkSnark
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                Water is scarce, and the aquifers are replenished in part by rainfall. Collecting rainfall in, say, a large cistern or retention pond for personal use prevents it from entering the aquifer.

                Putting in a reasonable allotment (like two 55 gallon barrels) is being smart, since it is enough to offset how much a household uses, but not enough to largely impact the whole system.Report

            • Avatar Kazzy in reply to RTod
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              @rtod

              Yes, that is what I meant. I don’t think such laws are illegitimate, but it does create a weird space in which someone else is entitled to something that falls from the sky and lands on your property.Report

              • Avatar Michael Cain in reply to Kazzy
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                While most of the examples people have used here involve western water law, there are other places weird stuff happens. When I lived in NJ many years ago there was a particularly dry summer. Several counties in NJ were dismayed when they discovered that they were obligated to open the floodgates on their reservoirs to maintain sufficient flow in the Delaware River to keep the salt line more than five miles below Philadelphia’s intake pipes. The local governments and water companies went, literally overnight, from saying that they had plenty of water to get through the summer, to enforcing fairly draconian water use restrictions.Report

              • Avatar J_A in reply to Michael Cain
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                Sort of the same concept. Philadelphia had prior use rights to water of a certain quality and you cannot mess with itReport

      • Avatar Stillwater in reply to Kazzy
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        So guns are a right but not water?

        In terms of resource supply and allocation, if the supply of guns was governed by the same limitations as the supply of water I’d fully expect lots of folks to weaken their commitment to negative rights.Report

      • Avatar notme in reply to Kazzy
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        According to the constitution, yes. I find the question ironic because the SCOTUS has said that not only is having a lawyer a right but that the state must provide one for you(wrongly in my opinion). Oddly, this same logic doesn’t apply to the 2nd amendment but that’s liberals for you.Report

  4. Avatar Kolohe
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    Looked up something on the internet yesterday that came up on a reality show my wife watches.

    It seems a lot of, or maybe all, the Western US states have longstanding legal systems wrt water as the one Slovenia just implemented. Oregon declared every drop of water on the surface and underground publicly owned (socialism!) back in 1955.Report

    • Avatar J_A in reply to Kolohe
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      I know from my perusal of Texas history that there is a centuries old legal conflict in the Southwest with respect to water rights between the Spanish colonial laws, and the common law introduced by the USA in the 1850s.

      Without knowing much about the conflict (and I would love to know more -treat this as a bleg!!!!), I would bet water laws transferred from a very arid country would be more suited to the region than a common law developed in swampy Northern Europe.

      But the common law won in most places, allowing for very irrational uses of water (see Oklahoma Dust Bowl)Report

      • Avatar Kolohe in reply to J_A
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        That’s Michael Cain’s baby, I think. Or maybe his step-baby, as I believe Cain’s primary expertise is in Western energy use and related govt/industry policis (and how state legislatures actually work), but H20 is all wrapped up in those issues as well.Report

      • Avatar Joe Sal in reply to J_A
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        Water wasn’t the singular cause of the Oklahoma dust bowl. There was too much open tilled soil and not enough native grasses and trees. I would say it was irrational use of the land, but the owners-operators had no basis in rationality to expect the cascade failures that occurred.Report

        • Avatar J_A in reply to Joe Sal
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          I am aware of what you say.

          But unlimited pumping water from the underground aquifers allowed for tilling and growing the unsuitable crops, which would not have happened in a similar way under Spanish style laws, where underground water belongs to the King (and its successor, the state) and were wells are regulated in number and volume, you require a license to pump water from it.

          The part I don’t understand well, btw, is the riparian rights lawsReport

        • Avatar Michael Cain in reply to Joe Sal
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          There’s a growing body of evidence that heat and drought were, in fact, the dominant causes of the 1930s Dust Bowl. Also that such conditions are not uncommon, but are a regular part of the southern Great Plains environment. Geoff Cunfer’s stuff on the subject is excellent.Report

      • Avatar PD Shaw in reply to J_A
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        says:

        I think water rights laws change naturally around the 100th meridian in the U.S., as a matter of common law. One of the benefits of the common law was that it always contained a vehicle for an alternate rule for different circumstances.

        For example, English common law imposed a duty on the owners of livestock to “fence in” their animals, who could be liable to pay for destruction of crops. American courts did not think this rule well-adapted to a frontier people, and opted for a “fence out” rule which imposed the duty on the owner of crops to erect fences. Adopting “fence out” as American common law, as opposed to “fence in,” mainly kept the previous rule, but shifted the burden.

        Water rights in the Western states starts with the same assumption of the right to use water on one’s own property, but includes the right to exclude subsequent, interfering uses. I would consider prior-appropriation water rights as a common-law rule adopted to areas with water limitations.Report

      • Avatar Francis in reply to J_A
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        California water law is essentially three different legal regimes jammed together and trying to co-exist. It’s never worked terribly well. I suspect if the drought drags on that the voters will demand a change to the Constitution which fundamentally re-writes how water rights are managed.Report

  5. Avatar Kolohe
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    says:

    The Arctic ice graph in the above link is far less alarming than another one that has been circulating.Report

  6. Avatar J_A
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    says:

    The oil and inflation article is another waste of electrons. To summarize because life is too short

    1. Energy is a big component in everything we make or do in the modern world.

    2. If energy prices would go up and then stayed flat, prices of everything we use energy to make or do would spike and then level again

    3. If energy prices would go down and then stayed flat, prices of everything we use energy to make or do would drop and then level again.

    4. So there’s apparently a correlation between the price of energy and the price of all we use energy to make or do.

    On another news, water is found to be wet. Details at 11.Report

  7. fillyjonk fillyjonk
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    Link #2: Maybe Santa causes global warming? He finally automated that toy factory because he was told to stop using elf sweatshop labor?Report

    • Avatar Stillwater in reply to Jaybird
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      says:

      I”m not sure what you mean here – Atrios has always been a policy guy first and a partisan much further down the list – but I agree with his take on things. As K has said before, she (meaning the campaign) had one job, and thru a predictable level of incompetence, detachment, insularity, disingenuousness, smugness(!!), and incompetence(it deserves repeating), they succeeded in failing.

      That isn’t to say Trump wouldn’t have won if the Dem-brain trust wasn’t ill-suited to the task at hand. He might have responded to a different campaign with a different, and successful, strategy. It’s more that the first level of blame here is pretty easy to identify.Report

  8. Avatar Kolohe
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    says:

    Immortan Joe maintained that all water was the property of the sovereign, and was to be distributed as the sovereign deemed appropriate, and that worked out great.Report

  9. Avatar Oscar Gordon
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    says:

    Ran across this today, kinda relaxing to watch.Report

  10. Avatar Pinky
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    says:

    Things I hate: people misusing the word “equating”.

    The headline of the climatedepot article is: CNN’s Christiane Amanpour equates climate ‘deniers’ with proponents of ‘ethnic cleansing and genocide’. If the quote they gave is accurate, she did no such thing. She compared coverage of both.

    This ties into the whole fake news / bubble / internet communication theme. If I say, “people who do A are like people who do B”, I’m not saying that A=B, or that people who do A = people who do B. Odds are, the whole thing was an analogy, anyway.

    A variation on this is, if I say “people who do A are like people who do B”, that doesn’t mean that everyone on my side thinks that people who do A are like people who do B. It definitely doesn’t mean that people on my side think A=B. And I might not be on the side you think I am, at least not on this topic.Report

    • Avatar DensityDuck in reply to Pinky
      Ignored
      says:

      “If I say, “people who do A are like people who do B”, I’m not saying that A=B, or that people who do A = people who do B. Odds are, the whole thing was an analogy, anyway.”

      Here’s the thing: you don’t get to choose how your words are heard. If you don’t want to sound as though you’re accusing people of being racists, then maybe don’t say anything about them being “like racists”. Find a less-clumsy way to communicate.Report

      • Avatar Pinky in reply to DensityDuck
        Ignored
        says:

        I don’t know about this. I don’t want to get into a discussion about rights – they can get messy – but I’ll say that you have an obligation to interpret clear words fairly. At a minimum, your credibility should take a hit if you don’t.Report

  11. Avatar notme
    Ignored
    says:

    Charlotte police officer will not be charged in death.

    http://www.charlotteobserver.com/news/special-reports/charlotte-shooting-protests/article117921218.html

    As Sam might say, racist police again kill blacks with impunity.Report

  12. Avatar Oscar Gordon
    Ignored
    says:

    This is a novel idea, but possible, given that we are getting very good at making substances like diamond. I haven’t done any kind of deep dive into this, so keep some skepticism in mind, since science reporting is often pretty shallow.Report

  13. Avatar Jaybird
    Ignored
    says:

    A tweet for the neolibs:

    We are pleased to have reached a deal with President-elect Trump & VP-elect Pence to keep close to 1,000 jobs in Indy. More details soon.— Carrier (@Carrier) November 30, 2016

    From what I understand, Fox was interviewing employees and asking them what they thought about this deal. They were delighted. Interviewer asked one “if you could talk to Trump, what would you say?” The employee then went on to thank Mr. Trump.Report

    • Avatar DensityDuck in reply to Jaybird
      Ignored
      says:

      I think my favorite response is “well there’s ANOTHER fourteen hundred jobs that they ARE cutting so HOW IS THIS A VICTORY”.

      Like the important thing in this is to find a way for Trump to not have been right, for him to not deliver on campaign promises.Report

      • Avatar Jaybird in reply to DensityDuck
        Ignored
        says:

        You know what Obama should have done for 4-5 years? Had CNN interview people who got health insurance from Obamacare whose lives were made measurably better by the policy.

        Have them cry and thank President Obama for saving their lives.Report

        • Avatar Stillwater in reply to Jaybird
          Ignored
          says:

          Great idea, Jaybird. Thank Allah he didn’t. Next thing you know, a propaganda-driven Reality TV star who single-handedly destroyed the USFL, defrauded thousands, and Grabs becomes the president elect.

          Wait…Report

        • Avatar PD Shaw in reply to Jaybird
          Ignored
          says:

          Have I mentioned recently that in key states like Iowa and Wisconsin, the percentage w/ health insurance coverage was statistically the same as Massachusetts before the ACA?Report

          • Avatar Jaybird in reply to PD Shaw
            Ignored
            says:

            I appreciate what the ACA was going for. I do.

            I still boggle at the whole idea that people seriously thought that it was going to work as advertised.

            Smartest people in the room, my Aunt Fanny.Report

            • Avatar gregiank in reply to Jaybird
              Ignored
              says:

              And still millions of people got insurance and used plenty of it. The rate of insured people is as low as its ever been. There were also stories about people getting HI and being really happy with it….who could have guessed.Report

            • Avatar Stillwater in reply to Jaybird
              Ignored
              says:

              I still boggle at the whole idea that people seriously thought that it was going to work as advertised.

              Depends on what you think the advertising was, seems to me.

              If you thought it was gonna make every singly amernican’s live economically better, then you weren’t paying attention.

              If you thought it was gonna “bend the cost curve” over time, then you were sold a bill of goods.

              The upside is that the GOPs plan may very well “bend the cost curve” (nationally, of course, as a percent of GDP…) but only by excluding folks who actually need insurance from getting it. Like people with the chronic medical condition known as “ageing”.Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                Depends on what you think the advertising was, seems to me.

                Well, since I haven’t yet heard about “black markets” in health care (well, excepting people smuggling epi-pens from Europe), Obamacare is doing better at this point than I thought it would be.

                So it’s exceeding expectations over here.

                If we want to expand it out from me to most of the country?

                If you thought it was gonna make every singly amernican’s live economically better, then you weren’t paying attention.

                If you thought it was gonna “bend the cost curve” over time, then you were sold a bill of goods.

                What did “most Americans” think it was going to do?

                How was it advertised to them?

                That’s why I think that bringing out Wally Johnson and Ashley Smith every couple of weeks to cry on camera would have done a lot of good… for this one small area.Report

              • Avatar Jesse Ewiak in reply to Jaybird
                Ignored
                says:

                “That’s why I think that bringing out Wally Johnson and Ashley Smith every couple of weeks to cry on camera would have done a lot of good… for this one small area.”

                Do you remember the kerfluffle over Graeme Frost (https://en.wikipedia.org/wiki/Graeme_Frost)? Granite countertops and all that?

                Sure, would it have shifted things a few points? Absolutely. But, I don’t think it would’ve been the panacea you think it would be because most Republicans were opposed to the policy. Just like most Democrat’s will not be convinced by this Carrier thing that we should hand over tax breaks to every company that says they’re going to outsource jobs.Report

              • Avatar Stillwater in reply to Jesse Ewiak
                Ignored
                says:

                Sure, would it have shifted things a few points? Absolutely.

                Which would have made HRC president, from what I understand. In which case we wouldn’t even be having this conversation.Report

            • Avatar PD Shaw in reply to Jaybird
              Ignored
              says:

              My comment about the ACA is purely on the politics. Expanding coverage for the few, while increasing the costs for those w/ coverage, could not be the part of building a multistate coalition because the ratio of helps versus hurts skews very differently btw/ the South and the North.Report

        • Avatar Jesse Ewiak in reply to Jaybird
          Ignored
          says:

          In other words, you wanted Obama to force the press to propagandize for him to save his failing program? Because that’s how 50% of the people would hear it, thanks to Facebook, Fox News, Brietbart, and the like.Report

      • Avatar switters in reply to DensityDuck
        Ignored
        says:

        Don’t you just hate when the government picks winners and losers.Report

    • Avatar Jesse Ewiak in reply to Jaybird
      Ignored
      says:

      Yeah, since the actual deal involves more tax breaks for Carrier, all that will happen in the long term is there will be less tax revenue for the state government, which will mean that either taxes have to be raised (which isn’t happening) or services will have to be cut.

      So, all this really does is give corporations another arrow in the quiver of ways they can extract money from state and local governments to not move to another city, state, or country.Report

      • Avatar Will Truman in reply to Jesse Ewiak
        Ignored
        says:

        It’s bad presidenting, but good politicianing.Report

      • Avatar Jaybird in reply to Jesse Ewiak
        Ignored
        says:

        As criticisms go, I’m stuck with questions. If the factory closed, how much of a piece of the action would the state government have received?Report

        • Avatar switters in reply to Jaybird
          Ignored
          says:

          As questions to criticisms go, I’m left with questions. Are you comfortable extending this deal to any company that threatens to leave the state. I mean, if they leave, the state will receive nothing, so the state should probably give the company anything that gets them $1 more than nothing right.

          That will work great in the long term.Report

      • Avatar Chip Daniels in reply to Jesse Ewiak
        Ignored
        says:

        So this sounds a lot like my proposal, whereby welfare is given to working class people but disguised under layers of abstraction.

        We take money from the Treasury, give it to the corporation on condition they keep a bunch of guys doing work that doesn’t really make a lot of economic sense, and replenish the money with taxing the rich.

        Except in this proposal, they aren’t refilling the coffers with any tax revenue from other sources.

        Kind of like a Soviet tractor factory.Report

    • Avatar Chip Daniels in reply to Jaybird
      Ignored
      says:

      More details soon

      Something tells me there is a lot of work being done in that phrase.Report

  14. Avatar Jaybird
    Ignored
    says:

    So, like, Pelosi is still Minority Speaker.

    This strikes me as insufficiently cognizant of what happened 22 days ago.Report

    • Avatar Will Truman in reply to Jaybird
      Ignored
      says:

      The problem for the Democrats is this: Pelosi was an incredibly effective parliamentary leader. But she is not a good political leader.Report

      • Avatar Jaybird in reply to Will Truman
        Ignored
        says:

        That makes me think that she’d be the perfect whip. She could whisper in the ear of Tim Ryan and give advice while, at the same time, being an awesome behind-the-scenes kinda person without being the face of the party in the Congress.

        Am I looking at that wrong?Report

        • Avatar Will Truman in reply to Jaybird
          Ignored
          says:

          That’s sort of where I come at it. I mean, I’m sitting here thinking that if they could just get a majority you’d want her running things (whether from the top or from a #2 position*). But it doesn’t do a whole lot of good if you’re stuck in the minority.

          * – See also: DeLay, Tom. Which is a little unfair because she’s not Tom DeLay. But there is definitely some skill overlap there.Report

      • Avatar Jesse Ewiak in reply to Will Truman
        Ignored
        says:

        Almost nobody who hates Nancy Pelosi would otherwise for a Democratic candidate for the House. Just like almost anybody who hates Paul Ryan would otherwise vote for a Republican candidate for the House.

        Also, who’s the alternative? Tim Ryan – a guy who didn’t even pay his DCCC dues?Report

        • Avatar Will Truman in reply to Jesse Ewiak
          Ignored
          says:

          A lot of people hated Boehner and voted for GOP house candidates.

          But it’s not an issue of “hate” so much as maybe not being a good spokersperson for the party, or maybe not good at helping her party win (or retain) House seats.Report

          • Avatar Jesse Ewiak in reply to Will Truman
            Ignored
            says:

            I’d point out the Democrat’s did increase their number of House seats this election, despite Trump winning. JFK reincarnated could’ve been Speaker and the Democrat’s would’ve lost in 2010 and 2014.

            And Pelosi isn’t going to be the spokesperson for the party – a certain former POTUS who won’t have much to do will be.Report

      • Avatar Stillwater in reply to Will Truman
        Ignored
        says:

        But she is not a good political leader.

        I’m curious about the distinction. Why do you think she’s not good at politics?Report

        • Avatar Will Truman in reply to Stillwater
          Ignored
          says:

          By “good” I mean if you give her a majority, she’ll make stuff happen.

          Trying to get a majority, or to keep one? She’s not especially good at that, and I think they should probably be looking for someone who is.

          Contra Jesse, I don’t look at gaining six seats in this particular election as impressive. They failed to recruit candidates even for congressional districts that might have been competitive (at least one that Clinton won), recruited poor candidates elsewhere (their nominee from my district, where the R incumbent got 49% in 2014, had to sign a deal with the FDA to close a secret cloning lab where he was trying to clone his son), and have simply shown little signs of attempting to actually be competitive in what for a while looked like a great cycle for them.

          I mean, if you’d asked me a year ago what I thought, I’d said “Stick with Nancy” because at peak it’s a parliamentary job. But man, something has gone wrong and I think she’s a part of it. It doesn’t matter how effective a Speaker she’d be if they don’t start getting serious about the House. Of the last five speakers of my political lifetime, I have probably respected her the most. But I think she’s good at the part of the job she’s not going to actually get to do.Report

          • Avatar Stillwater in reply to Will Truman
            Ignored
            says:

            I don’t mean to be too quick with your lengthy reply, but isn’t recruiting candidates something the DNC is supposed to do? Her job is to advance an agenda and “sell” it. Part of that is leveraging commitments to priorities against allocation of campaign funds, but that seems like an after-the-fact sorta thing given the type of Reps she is able to influence/align.

            Add: I also think that rejecting Pelosi as some sort of standard bearer would put the Dems in an even worse position than they’re already in.Report

            • Avatar Will Truman in reply to Stillwater
              Ignored
              says:

              I was initially inclined to blame DWS, I was told it was the DCCC! Truthfully, I think there’s a lot of blame to go around, but the DCCC is a big part of that, and the DCCC reports to her, and it’s all under her house. I know that on the Republican side leaders do work with the committee leaders. Maybe that’s totally not the case on the Democratic side, but maybe that in itself is a part of the problem.

              If they get a majority back, she’d be a good person to Get Things Done. But I don’t really see what she’s done to retain her position. Candidate recruitment is an obvious example, but the messaging doesn’t seem great, the spokesperson work doesn’t seem great. She seems effective in the way that Tom DeLay was effective. Which doesn’t seem to be enough while they’re in the minority (or enough to keep the majority).Report

          • Avatar Jesse Ewiak in reply to Will Truman
            Ignored
            says:

            Pelosi isn’t in charge of recruiting candidates – the DSCC is. You’re blaming the guy in charge of the managing the actual manufacturing plant for the marketing plan not working.Report

            • Avatar Kolohe in reply to Jesse Ewiak
              Ignored
              says:

              At some point you’d think *someone* would be responsible for the Democrats’ net performance in elected contests for the House of Representatives, US Senate, state governor and legislative races between and inclusive of 2008 to 2016.

              Or maybe no one is.

              And that is how we got Trump.Report

            • Avatar Morat20 in reply to Jesse Ewiak
              Ignored
              says:

              Blaming Pelosi appears to be a case of “She’s old! She’s establishment! She’s to blame!” even though, you know, it’s not her job (and the Democrats actually picked up House seats this year anyways).

              Usual circular firing squad stuff, combined with the normal urge to pick a relative handful of people, a simple reason or two, and claim that’s to blame for a complex situation.

              It’s much more satisfying, on a gut level, than doing actual complex analysis and getting fuzzy, difficult to address, results. Plus when it fails, you just pick another person (whether they had anything to do with it or not), another simple reason or two, and you get the warm fuzzies all over again!Report

              • Avatar Will Truman in reply to Morat20
                Ignored
                says:

                The DCCC is a function of congressional party leadership. She is the congressional leader. Right now, the argument for a change in leadership seems pretty strong to me (at the DNC and in the House. If he hadn’t retired, I might re-up Reid).Report

              • Avatar Morat20 in reply to Will Truman
                Ignored
                says:

                Except for the fact that, by and large. Pelosi is a strong Minority Leader who has done well with what she’s had to work with.

                Strangely, the biggest calls for her scalp have come from the furthest left, who seem to think they’ll find someone more liberal than her to replace her. That’s both unlikely (given her district, she’s as shielded from personal election concerns as she can be, and comes from one of the most liberal areas of the country) and completely ignores the fact that the issues are the marginal seats — any Speaker has to deal with not only the deep blue Reps, but the folks who barely held onto their seats — and try to keep them in office.

                Sitting elected officials are, by and large, really bad party leaders (the President excluded, given it’s an executive function that’s nationwide). And even the President runs into the problem that a party leader should be talking about ideals, whereas actual politicians have to make sausage.

                In public.Report

              • Avatar Stillwater in reply to Morat20
                Ignored
                says:

                Strangely, the biggest calls for her scalp have come from the furthest left, who seem to think they’ll find someone more liberal than her to replace her.

                I don’t know if that’s true or not, but I have a hard time believing any Dem pol in a position of real organizaitonal power could be further to the left than Pelosi. A movement attempting to get rid of her because she’s not far enough to the left is seriously misguided. This is a party that has Joe Liebermans, Ben Nelsons and Hillary Clintons at it’s core.Report

              • Avatar Morat20 in reply to Stillwater
                Ignored
                says:

                I’m thinking the younger set, who just see an establishment figure who must be, therefore, too conservative.

                Admittedly, the folks I’ve seen complaining the most were rather heavily Sanders fans, many of whom now consider Warren a corrupt tool of the establishment as well.Report

              • Avatar Saul Degraw in reply to Will Truman
                Ignored
                says:

                @will-truman

                I am in between Jesse, you, and Jaybird here. Maybe the Democratic leadership could use a shakeup but I don’t think Ryan was the guy to do it.

                Ryan was a trowback to the past of the Democratic Party. Different part of Congress but if you look at the Senate, the 4 new Democratic Senators are all women and three of them are people of color. The white-guy populists lost their elections. Perhaps a Tammy Duckworth type in Wisconsin would have been better than Feingold again and I like Feingold. The only exception will be if Foster Campbell manages to pull off a surprise victory in Louisiana this December.Report

              • Avatar Will Truman in reply to Saul Degraw
                Ignored
                says:

                I’m not very high on Tim Ryan*. The fact that he got 60-something votes is kind of a warning sign that the Reps are not as sanguine as a lot of the folks here are.

                But I think it’s time to turn the page. She had a 14-year run. She’s good, but I don’t think she’s what they need right now. They need a builder. Maybe some new ideas. The notion that this is just Circular Firing Squad is just silly. It’s the fact that she’s stayed on as long as she has (especially out of power for most of it) that is the unusual part.

                * – That said, Pelosi’s comment about him coming from a Trump district was dumb. They may not need that in the top spot, but it’s a useful perspective to have somewhere in leadership.Report

              • Avatar Autolukos in reply to Will Truman
                Ignored
                says:

                Generational turnover for the sake of generational turnover seems like a good idea to me, but as a young I would say that, wouldn’t I.Report

              • Avatar Morat20 in reply to Will Truman
                Ignored
                says:

                As I stated, it’s probably a good idea for your Speaker to come from a safe district. Of course, said Speaker needs to grok that his/her job also includes giving cover to their Reps in marginal districts.

                But given the lightning-rod nature of being Speaker, anyone from a marginal district is going to have to play a LOT safer than otherwise.

                And force the whole party with them.

                You can’t be the guy who “voted against this bill!” (because the Whip counted votes and let you peel off for cover) if you’re the Speaker. You’re stuck with every Bill that has your party’s majority support (especially those that passed) regardless of how you voted.Report

              • Avatar Will Truman in reply to Morat20
                Ignored
                says:

                Ideally, you have someone somewhere in between the two. You’d prefer the Democrat have a constituency no further to the right than Nevada but no further to the left than Illinois. For a Republican, it might be Tennessee and Iowa. Basically, states that are not immune from counter-winds but also aren’t especially vulnerable if you’re a well-regarded incumbent or otherwise good candidate.

                Basically, Ryan’s is likely too vulnerable, and Pelosi’s too safe. Which isn’t to say that you *can’t* go that route, but it’s reason for caution.Report

              • Avatar Morat20 in reply to Will Truman
                Ignored
                says:

                Sounds like the DLC right there, triangulating. 🙂

                Except for, at least in theory, Pelosi doesn’t set party direction at all. She’s responsible for unity, but she’s not (and as best I can tell, never tried to be) a leader in the ‘vision’ sense.

                She was pretty darn good at knocking heads, counting votes, and giving out cover when possibly (ie, parliamentarian stuff). Coming from a safe district means she can basically soak up any party changes without worrying overly about challenges from the left or right.

                So I’m still confused why they should have swapped her out. The best argument seems to be she wasn’t good at a job she wasn’t doing and wasn’t supposed to do, and that replacing her would somehow make that job done better by…whomever got that job?

                The argument of “Let’s fire THIS manager so that the manager in another division gets his act together” is not terribly compelling, especially when the manager we are talking about firing seems to have done a fine job.

                The argument against Pelosi seems to be, basically, “we need new blood even if the old blood is doing fine” conflated with an argument about an entirely different position entirely (DNC head, basically).Report

              • Avatar Will Truman in reply to Morat20
                Ignored
                says:

                The department that failed most failed under her watch. The DCCC isn’t some other department somewhere else. It’s under her. She does some things very well, but those things aren’t the totality of her job. Even if she is not personally doing the other things, she is delegating (well or poorly). She is the leader of the caucus, not a whip. She does set House agendas. She had a very heavy hand in both TARP and PPACA. She’s not some functionary. And without a president, she’s about to become one of the party’s leaders.

                I don’t think she’s done a bad job. She was a very effective Speaker. That was when her real talents mattered most. They matter less as a minority leader in the party opposition to the president. They actually need some of that vision thing, and a path forward.

                She’s had the job for a really long time. I don’t begrudge her that, but at the least they need to be preparing for a transition (the strongest argument against ditching her is that she has prepared no successor, which is also not good). She lost a third of her caucus to a nobody. People today have been looking up to see the last time anything like that has happened. (Last I heard, it hasn’t.)Report

              • Avatar Saul Degraw in reply to Will Truman
                Ignored
                says:

                @will-truman

                That still left her with a 120 something victory which is pretty comfortable.

                The Trump District comment was dumb but I still think he is a bit of a throwback.Report

          • Avatar Jaybird in reply to Will Truman
            Ignored
            says:

            their nominee from my district, where the R incumbent got 49% in 2014, had to sign a deal with the FDA to close a secret cloning lab where he was trying to clone his son

            This comment went from 0 to 100 in record time.Report

      • Avatar Morat20 in reply to Will Truman
        Ignored
        says:

        Is “political leader” in her job description? She’s not like head of the party, or of the DNC, or anything like that.

        Minority Speaker’s primary job would seem to be parliamentary.Report

  15. Avatar Jaybird
    Ignored
    says:

    Those of you who enjoy pulling your hair out might enjoy this interview with Obama in Rolling Stone.


    You can now buy marijuana legally on the entire West Coast. So why are we still waging the War on Drugs? It is a colossal failure. Why are we still dancing around the subject and making marijuana equivalent to a Schedule I drug?

    Look, I’ve been very clear about my belief that we should try to discourage substance abuse. And I am not somebody who believes that legalization is a panacea. But I do believe that treating this as a public-health issue, the same way we do with cigarettes or alcohol, is the much smarter way to deal with it. Typically how these classifications are changed are not done by presidential edict but are done either legislatively or through the DEA. As you might imagine, the DEA, whose job it is historically to enforce drug laws, is not always going to be on the cutting edge about these issues.

    [Laughs] What about you? Are you gonna get on the cutting edge?
    Look, I am now very much in lame-duck status. And I will have the opportunity as a private citizen to describe where I think we need to go. But in light of these referenda passing, including in California, I’ve already said, and as I think I mentioned on Bill Maher’s show, where he asked me about the same issue, that it is untenable over the long term for the Justice Department or the DEA to be enforcing a patchwork of laws, where something that’s legal in one state could get you a 20-year prison sentence in another. So this is a debate that is now ripe, much in the same way that we ended up making progress on same-sex marriage. There’s something to this whole states-being-laboratories-of-democracy and an evolutionary approach. You now have about a fifth of the country where this is legal.

    The interview continues by pointing out that Obama actually DID SHIT when it came to SSM…

    But you can pull your own hair out.Report

    • Avatar Don Zeko in reply to Jaybird
      Ignored
      says:

      Yeah, how dare he express sentiments that we agree with! I get that it’s frustrating that we wasn’t crusading in this issue for the past eight years, but come on, there are only so many hours in the day and a million other things to deal with. He allowed state legalization to go forward more or less unmolested, he commuted sentences for drug offenders. Let’s take the small win and hope it builds momentum for a bigger one.Report

      • Avatar Jaybird in reply to Don Zeko
        Ignored
        says:

        Wanna hear my rant about how the game was given away?

        Here it is: Kratom.

        A lovely little evergreen herb that has been demonstrated to help some people with, among other things, pain relief and opioid withdrawal.

        Now, the “among other things” part mentioned above includes “recreational use”. Okay? Okay.

        So the DEA hears that it has made it to the US?

        WHAMMO. Schedule 1.

        Which tells you what?

        That the DEA is in charge of what gets scheduled and where. Not congress. Not the courts.

        The part of the government that falls under the jurisdiction of the Executive.Report

        • Avatar Francis in reply to Jaybird
          Ignored
          says:

          Yes, the DEA is under the Executive. But the rules which govern its operation are very much from Congress.

          One issue that regularly drives new Presidents crazy is the extent to which agencies are not under his direct control. “Rule-making” is one of the wonderful terms that non-partisan managers get to explain to the new appointees as to why the agency cannot suddenly change course. (That, and “appropriations”. You want a whole bunch of new rules, reversing the old ones? Money first.)Report

          • Avatar Jaybird in reply to Francis
            Ignored
            says:

            “Ms. Leonhart! Great to see you! Coffee? Anyway, why I asked you here was to see whether you could move the old ‘Emm Jay’ down to schedule 3 or 4, maybe.”

            “Sorry, can’t. There are *SO* many rules.”

            “Bummer. Can I have your letter of resignation?”Report

            • Avatar Morat20 in reply to Jaybird
              Ignored
              says:

              So you’re advocating that, on behalf of pot legalization, the President should basically fire his way down the FDA and DEA until he found someone willing to break laws?

              That seems…sub-optimal.

              In fact, that seems downright dangerous. Nixonian, in fact.

              That was Francis’ point — that the President, while head of the Executive, lacked the authority to unilaterally reschedule a drug, via executive order.

              If he lacks that authority (assuming Francis is right) how is firing your way down the ladder until someone does it anyway a good idea?Report

              • Avatar Oscar Gordon in reply to Morat20
                Ignored
                says:

                But are they breaking laws? There is no legislation that Kratom must be a controlled substance, which means the DEA has the authority to add and adjust the items on the schedule as long as they meet the (IMHO) very flexible standards as to what should be controlled.

                Now moving MJ further down the list might be a political battle, either from members of congress, or from the DEA bureaucracy itself, but that is much different than demanding a subordinate break the law or find a new job.Report

              • Avatar Morat20 in reply to Oscar Gordon
                Ignored
                says:

                Unless the rule-making process itself is a matter of law. Or there were laws in place designed explicitly to prevent Presidents from basically dictating end results to regulatory agencies.

                In fact, I believe the law in question is the Controlled Substances Act, which states pretty clearly gives the power to the AG in conjunction with a few other branches. (That doesn’t even get into some weird treaty obligations).

                Can Obama fire his way to the result he wants? Sure. But the LAST guy that did that got impeached. And sure you can say “Pot legalization is different than Watergate” — but the methods would be the same. Forcing the issue by firing the heads of multiple regulatory agencies until you got to someone that’d do it your way, skipping all procedure.

                And of course, once you do THAT….it becomes incredibly easy for the next guy in to undo it — or use that precedent to quite a few other things.

                It’s a really, really bad idea. Deprioritizing has been the traditional Executive tool for such things — which has been what Obama did.

                And if Obama isn’t going to play Saturday Night Massacre for pot, he’s certainly not going to do it for something else.

                This is stuff you know, but for some reason you’re forgetting. A lot of this stuff is set up to prevent, or at least heavily discourage, the President from being able to dictate end results.Report

              • Avatar Oscar Gordon in reply to Morat20
                Ignored
                says:

                Still, the head of the DEA & the AG are appointed by the president, and both can start the official process of moving pot down the schedule at the request of the POTUS, if the POTUS wanted it.

                Assuming Obama wanted to downgrade pot, either his appointees did not agree and refused to start the ball rolling, or there are other forces at work to keep it high up on the schedule (mainly BigPharma & Police Unions, if you believe places like Alternet).

                Or Obama didn’t care enough to spend the political capital to make it happen, and just paid lip service to the idea (which is what I think happened).Report

              • Avatar Stillwater in reply to Oscar Gordon
                Ignored
                says:

                Oscar, Jaybird:

                So, instead of using his powah to NOT defend tradmar he shoulda used it to not defend MJ legalization?

                I’d think libertarianish folks like you would be happy he picked up the Executive Power ball on at least ONE of those issues.Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                I suppose I should be glad that he’s saying what he’s saying about Marijuana while he’s still in office.

                Most politicians wait to say that we should treat weed like tobacco/alcohol until after they re-enter the private sector.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                That makes no sense in general but especially given what he actually said:

                it is untenable over the long term for the Justice Department or the DEA to be enforcing a patchwork of laws, where something that’s legal in one state could get you a 20-year prison sentence in another. So this is a debate that is now ripe, much in the same way that we ended up making progress on same-sex marriage. Report

              • Avatar Stillwater in reply to Stillwater
                Ignored
                says:

                Unless, of course, you DON’T think we, as a society, made progress by legalizing SSM. It may be what brought us Trump!! Imagine the as yet undreamt of national political disasters which lurk if we legalized MJ too quickly…Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                Imagine the as yet undreamt of national political disasters which lurk if we legalized MJ too quickly…

                “What in the hell happened to voter turnout?!?”

                So let’s say that my “move it to Schedule 3 or 4” is “too quickly”. You think “okay, Schedule 2” is too quickly at this point? Saying “if various states want to treat it like schedule 1, they can, but we, as a Federal Government, will now start treating it like Schedule 2”?

                Or is that still Mr. Toad’s Wild Ride?Report

              • Avatar Morat20 in reply to Oscar Gordon
                Ignored
                says:

                Or the shorter version: The law was set up to give control of drug scheduling to several agencies in conjunction — not to the President himself.

                He is head over those agencies, and could massacre his way down them until they agreed.

                But does this strike you as a good idea? A good precedent in general? I mean it looks to me like a massive expansion of Presidential power.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                Which law would they be breaking, Morat?

                Surely you’re not suggesting that the DEA broke the law when they originally scheduled Kratom, then broke it again when they unscheduled Kratom temporarily prior to seeing where it ought to be scheduled?Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                The Controlled Substances Act, which lays out the particular methods by which the various executive branch agencies classify drugs.

                Now, like I said, he could play Saturday Night Massacre until he got the result he wants, rather than letting it go through the clearly established channels.

                But do you really think that’s a good idea?

                The President isn’t a King, no matter how badly you hate our drug policy.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                So did the DEA actually break the law at some point between right before scheduling Kratom and right after unscheduling it that more evidence could be looked at?Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                Dear Jaybird:

                Have you done the slightest research into what the Administrative Procedure Act is? The APA governs how federal agencies actually work. The President could threaten to fire every single political appointee and they still couldn’t get staff to put together a rule de-listing MJ on an overnight basis.

                If some appointee decided that she had the power to over-rule staff and just issue the rule anyway, the federal judge hearing the case would have a nice long chat with the poor victim from the AG’s office who had to defend the case, explaining that we are still a nation of laws and he expects the administration not to make that mistake a second time.

                And if the appointee starts trying to fire staff, then the staff member calls up her union rep who then sits down with the appointee and explains civil service rules.

                Yes, the President makes policy for the Executive Branch. But the agencies that he directs still have to follow the laws set by Congress. If the agency has decided, in the exercise of its discretion, that MJ is properly on Schedule I, then the remedy is with Congress.

                It does happen that agencies change their mind and reverse prior agency decisions that have gone all the way through rule-making. But that process is itself governed by the APA.

                By the way, have you googled “Federal Register Kratom”? There’s some interesting reading there.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Nope, I haven’t.

                All I have done is sat and watched as the DEA found a brand new(ish) plant that helps with opiate withdrawal (while we are right smack dab in the middle of an opiate epidemic!), said “NOPE THIS PLANT IS SCHEDULE 1!”, then, amazingly, put a *HOLD* on that decision while they gathered more information on whether the plant that they said was Schedule 1 really ought to be in Schedule 1.

                Which communicates to me that they are the ones who pick and choose which substances get scheduled where and, get this, are capable of saying “hey, let’s move it from *THIS* schedule to *THAT* one.”

                If the agency has decided, in the exercise of its discretion, that MJ is properly on Schedule I, then the remedy is with Congress.

                The Kratom example runs counter to this. The DEA did not, for example, say “sorry! We put it on Schedule 1! Go to Congress!”, they said “Whoops! Maybe we shouldn’t have put it on Schedule 1… Let’s look at this.”

                They gave the game away.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                You want the President to blow a wide hole through everything to get the result you want.

                You’ve ignored people saying “That’s now how the procedure works” and “that’s not how the law works” and “that’s literally now how the executive branch has ever worked” and even “last time someone did something like this we impeached the President who did it” in favor of raging that the end result doesn’t fit your desires, and the process (which you know little about) doesn’t fit your preconceptions.

                You’ve even ignored the straight-forward statement that “If the Executive branch has implemented a law in the wrong way, or utilized the discretion given to it by Congress to create regulations we dislike, the correct remedy is either the Courts (the decision was unlawful) or Congress (the decision was politically disliked, or not the intent of Congress)” and not via the President’s ability to literally fire people until someone does what he says.

                I expect to hear little from you about “Executive overreach” or the “Imperial Presidency” in the future, because you’re clearly stating here that you don’t CARE about law, procedure, limits of power, or anything like that if it stands between you and your desire political ends.

                I’m in favor of pot legalization. But not if the cost is turning the entire Executive branch and all it’s agencies into nothing more than executors of the President’s personal whims.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                Telling the DEA to move it from the schedule that says “The drug or other substance has no currently accepted medical use in treatment in the United States” to the schedule that says “The drug or other substances have currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions” is to “blow a wide hole through everything”?

                If everything would have a wide hole blown through it by the DEA doing WHAT IT HAS ALREADY DEMONSTRATED IT CAN AND IS WILLING TO DO, then everything *NEEDS* a wide damn hole blown through it.

                Luckily for both of us, I think we both agree, deep down, that asking for this is *NOT*, in fact, blowing holes.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Jaybird, you’re not stupid. You KNOW the difference between the DEA reassessing it’s decisions through it’s own internal processes, and the President demanding they change it under penalty of dismissal.

                The IRS makes internal decisions all the freaking time about who to audit, right? And there’s an appeals system in place if you don’t like the results, and sometimes their decisions get changed, right?

                Do you think the President should tell the head of the IRS to audit, say, Glenn Beck? And to keep firing people until they do? Or to be even more apt — to not only audit Glenn Beck, but make sure he’s fined at least a million?

                Because that’s what you’re asking. You just won’t admit it, because it’s pot and that has to be different.

                But it’s the same abuse of power. The President dictating to the DEA where to schedule a drug under penalty of dismissal is no different than the President dictating to the IRS who to audit, and how much of a fine he wants them to have.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                @jaybird

                You should seriously do a little research on this issue before you keep going. Please read this. Look specifically at legal authority. The decision to remove the tempory placement on schedule I is here

                Here’s the federal statute regarding placement or rescheduling of drugs.

                This is an issue I care about deeply, and it is certainly true that Obama has not made it a priority. But the petitions to reclassify were file a few years ago, and the DEA issued its decision this summer. That’s how this process works. We lost. petitions to reclassify will, I’m sure, be filed again in the near future (if they haven’t been already), and we should push on Congress to reclassify. So, we can judge Obama for not speaking up more on this issue, or for appointing the head of the DEA and FDA who didn’t support reclassification, but I don’t fault him for abiding by the decisions his agency heads made.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                So, we can judge Obama for not speaking up more on this issue, or for appointing the head of the DEA and FDA who didn’t support reclassification, but I don’t fault him for abiding by the decisions his agency heads made.

                The part I bolded? That’s the part that I’m suggesting that could have been rectified via conversation prior to the last reclassification.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                Huh? Where did you say that. Seriously.

                You were arguing that the DEA had the authority to do this because they decided change withdraw the notice of intent for temporary placement of Kratom into schedule I. Read you comments at 12:19pm and 9:42am.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                I made up a little dialog and everything:

                Here, I’ll redo it:

                “Ms. Leonhart! Great to see you! Coffee? Anyway, why I asked you here was to see whether you could move the old ‘Emm Jay’ down to schedule 3 or 4, maybe.”

                “Sorry, can’t. There are *SO* many rules.”

                “Bummer. Can I have your letter of resignation?”

                Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                Yeah, there’s a difference between appointments and firing an agency head. It’s been discussed above.

                I’m not a fan of firing agency personal until an executive gets the answer they want. That’s true even in cases like this were I would love the outcome.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                Who suggested firing? Firing would have been completely inappropriate!Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                We agree!!Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                except the real conversation goes like this:

                “Sorry, not today. We’ll need a separate appropriation to cover at least a couple years worth of work for a whole group. We will need to take in an enormous amount of evidence about the chemical composition of the different strains of MJ that will be placed on the new schedule. We’ll need to generate a body of research that supports the change in decision. We’ll have to go through several rounds of notice-and-comment to be sure that we have a defensible final rule. But if there’s a strong commitment from the head of the agency to support staff through this process and you can deliver on the appropriation, then OK.”

                “Can I have your letter of resignation?”

                “For telling you what the law is? No.”Report

              • Avatar Oscar Gordon in reply to Francis
                Ignored
                says:

                @francis

                If that is the case, Cocaine has no business being on schedule II. Ditto opium. Both are plant based and have a wide variation of purity & composition, etc.

                In addition, the whole MJ overdose is a tough one to support, since I could probably count on one hand the number of people who have been seriously injured or killed by an accidental overdose (you gotta really work to ingest enough weed to kill you).Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Jaybird, I’m going to point out — AGAIN — that your little scenario is exactly what Nixon did.

                And it was doing that — firing people until someone was willing to do what he wanted — that was going to get him impeached, because it was considered an abuse of power.

                Is the DEA somehow magically different from the DoJ to make that NOT an abuse of power? Was everyone wrong with Nixon, and it wasn’t an abuse of power?

                Or is pot a magic snowflake that justifies it?

                Because nobody here is saying “Obama couldn’t have pushed for rescheduling pot” or “Pot can’t be rescheduled”. The entire pushback you’re getting is that “No, Obama couldn’t order it rescheduled at whim, and that firing people until someone did it would be an incredibly bad idea for so many reasons”Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                So we’re in this weird place where Obama is giving interviews with Rolling Stone magazine where he talks about how he seriously thinks that marijuana ought to be treated like alcohol but it’s unthinkable that he hire someone that thinks that?

                I mean, you’re not even arguing against me as if I were arguing that Marijuana ought to be scheduled next to harsh behind the counter laxatives.

                I’m talking about rescheduling it to schedule II (next to cocaine!!!!) and you’re telling me that that’s something that he can’t hire for.

                EVEN AS HE’S GIVING INTERVIEWS TALKING ABOUT HOW THE SUBSTANCE IN QUESTION OUGHT TO BE REGULATED LIKE ALCOHOL INSTEAD OF LIKE HEROIN.

                If we’re talking about a snowflake that everyone who gets out of power agrees is overregulated to hell and back and the people currently in power agree that more should be done but what can you do, you have to ask yourself “is this snowflake actually a magic snowflake?”Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                it’s unthinkable that he hire someone that thinks that?

                At no point before about an hour ago were you talking about appointments. Pretending that we disagree with you on that is disingenuous.

                I also think everyone here agrees marijuana should be at least reclassified if not decriminalized totally. That is tangential to this conversation, which is about how that reclassification gets done.Report

              • Avatar Michael Cain in reply to Jaybird
                Ignored
                says:

                …but it’s unthinkable that he hire someone that thinks that?

                And get them confirmed by the Senate, don’t forget. Given the average age of US Senators, I’d be amazed if there weren’t a number of Dem Senators who oppose legalization.Report

              • Avatar Mike Schilling in reply to Morat20
                Ignored
                says:

                I’m in favor of pot legalization. But not if the cost is turning the entire Executive branch and all it’s agencies into nothing more than executors of the President’s personal whims.

                We just got that. We might as well get legal pot out of it.Report

              • Avatar Morat20 in reply to Mike Schilling
                Ignored
                says:

                Until Jan 20th.

                I mean, if it works for Obama it certainly works for Trump.Report

              • Avatar Michael Cain in reply to Francis
                Ignored
                says:

                The APA governs how federal agencies actually work. The President could threaten to fire every single political appointee and they still couldn’t get staff to put together a rule de-listing MJ on an overnight basis.

                I may be misremembering, but believe that the DEA has its own set of procedures written in the authorizing statute. Among those, the head of the DEA is allowed to make solo calls on scheduling, and there’s none of the usual recourse to the courts as a last-resort challenge to those decisions. It’s been a long time since I read any analysis of the history of the law, but my recollection is that Congress was very much on the page of, “We’re going to put this particular decision in a law-enforcement person’s hands, and not let the civilians, and the namby-pamby courts in particular, overrule them.”Report

              • Avatar Gaelen in reply to Michael Cain
                Ignored
                says:

                From 21 USC 811(a). “Rules (and classification is determined by rule of the AG) of the Attorney General under this subsection shall be made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by subchapter II of chapter 5 of title 5.” (which is the APA). But this isn’t an area of expertise, and I would be surprised if they didn’t grant the DEA some special protections for scheduling controlled substances.Report

          • Avatar Kolohe in reply to Francis
            Ignored
            says:

            You know who else tried to shift responsibility for stuff by saying they were just going along with the mandates of the system?Report

    • Avatar Stillwater in reply to Jaybird
      Ignored
      says:

      I’m not sure why I should pull my hair out about this. If I wanted a President who didn’t respect existing institutions and the rule of law I’da voted for Trump.Report

    • Avatar Kolohe in reply to Jaybird
      Ignored
      says:

      Well, it’s Rolling Stone. I don’t know if they haven’t just made up this ‘Obama’ fellow they’re ‘interviewing’.Report

    • Avatar DensityDuck in reply to Jaybird
      Ignored
      says:

      “There’s something to this whole states-being-laboratories-of-democracy and an evolutionary approach.”

      As I said elsewhere, it’s gonna be hella fun seeing the reawakening of the states’-rights movement over the next four years, as each state decides to be Not Trump in its own unique way and points to the Tenth Amendment as justification.Report

    • Avatar Troublesome Frog in reply to Jaybird
      Ignored
      says:

      And I will have the opportunity as a private citizen to describe where I think we need to go.

      Sounds like a plan. Why put forth any recommendations when you’re the “leader of the free world” when you can wait until you’re a private citizen? Keep those cards close to your chest, Mr. President.Report

      • Avatar Stillwater in reply to Troublesome Frog
        Ignored
        says:

        These types of comments are disorienting when they come from folks who purport to understand how institutional structures work.Report

        • Avatar Troublesome Frog in reply to Stillwater
          Ignored
          says:

          I can’t say I understand how this particular institutional structure works. For one thing, nobody seems to be able to describe the process by which a drug is scheduled in the first place. It’s like picking a Pope or deciding which YouTube videos go viral or something. I get that he can’t just wave his hands and make it happen, but the impression he’s giving is that the question, “Where do we begin on this?” is simply unanswerable. There’s just an amorphous mass of nebulous decision makers making inscrutable decisions and the President who runs their agencies just doesn’t have any say in the direction it takes.

          Take the Don’t Ask Don’t Tell policy: He asked the Pentagon to start by doing a study on the likely effects. My guess is a President doesn’t really “ask” for those types of things and that if he wants a study, he’s getting a study. Is there a similar lever to pull in some of the other agencies that ultimately report to him? I’m guessing the answer is very much a yes, but what I’ve consistently gotten from these types of interviews is something more along the lines of, “Who’s to know? The machine worked that way when I got here and I wouldn’t even know where to begin to change what it’s doing.”

          But the good news is that as soon as the heads of those agencies no longer report to him, the shackles will come off and he’ll be free to let us know where he thinks we need to go.Report

          • Avatar Stillwater in reply to Troublesome Frog
            Ignored
            says:

            You presumably know how it works well enough to criticize Obama for not expressing himself regarding institutions governing MJ legalization. That he’s doin it wrong.

            For my part, I don’t understand you when you say you “don’t know how this particular institutional structure works.” I think you do, actually. All too well. And that’s the real complaint. 🙂Report

            • Avatar Troublesome Frog in reply to Stillwater
              Ignored
              says:

              You presumably know how it works well enough to criticize Obama for not expressing himself regarding institutions governing MJ legalization. That he’s doin it wrong.

              More accurately, he appears to be “doin’ nothing” which is pretty obviously the wrong thing to do. If he actually appeared to be doing something to start the ball rolling, I’d be happy to concede that he’s probably much better at pulling the right levers than I am as an armchair quarterback. He’s very good at slowly but surely pushing an agenda through when he wants to.

              But this doesn’t look like one of those times. This looks like one of those times when he doesn’t want to do something and finds it easier to confuse the issue and claim it’s out of his hands than to explain why he’s not moving.

              I think you do, actually. All too well. And that’s the real complaint. 🙂

              That might well be the case. I certainly don’t understand how the institution President Obama is describing is supposed to work, and I strongly suspect that’s because what he’s describing isn’t a real thing. His hands are nowhere near tied and there plenty of things he could be doing to move us in the right direction, but for reasons only known to him, he prefers not to and blames it on the vast complexities of our grand institutions.

              It’s pretty much the same tap dance he does when asked whether he would pardon Snowden. He puts out a lot of words that sound like, “I don’t have the power to do that,” when in reality, he chooses not to and would prefer not to tell us why. The buck starts and stops with him when it comes to pardons, but to hear him talk, you’d think he had a long checklist of things to do before he could even ask the Real Guy Who Does Pardons to entertain the request.Report

              • Avatar Stillwater in reply to Troublesome Frog
                Ignored
                says:

                His hands are nowhere near tied and there plenty of things he could be doing to move us in the right direction, but for reasons only known to him, he prefers not to and blames it on the vast complexities of our grand institutions.

                Sure, he could write an executive order.Report

              • Avatar Troublesome Frog in reply to Stillwater
                Ignored
                says:

                Really? That’s the only thing? Either nothing at all or an executive order? I mean, maybe I’m missing something in my understanding of US civics, but it seems like the President’s influence over his cabinet extends beyond just appointing them and saying, “What are you going to do?” if they run amok.

                Like, going back to the Don’t Ask Don’t Tell process, he seemed to have a strategy mapped out to start putting pressure on the stakeholders to wear down support for the policy and make opposition to the new state of affairs politically untenable. It was pretty well done and at no point did he have to bring the hammer down. That study and report was well within his authority and it gutted the opposition. It would be a nightmare for his replacement to try to put the policy back in place because of the groundwork he laid.

                Is there no equivalent to the Don’t Ask Don’t Tell study for the DEA and FDA? Like commissioning a fresh report examining the latest data supporting the current scheduling of drugs?

                After a disaster like this, it seems like the President would have a good argument that his people need to get their story straight and it’s time to formalize a solid, data-driven position in full view of the public. You can’t possibly watch that testimony and conclude that the executive asking WTF is going on with their data analysis and decision making is unreasonable micromanagement.Report

              • Avatar Stillwater in reply to Troublesome Frog
                Ignored
                says:

                That’s fine too, TFrog. In that case he’s a liar who never thought MJ should be legalized even tho he reitierates that view – obliquely, granted – in the quotation Jaybird provided.

                Or he’s incompetent.

                Or both.Report

              • Avatar Troublesome Frog in reply to Stillwater
                Ignored
                says:

                Well, he’s surely not incompetent. He has a pretty good track record on similar problems, as we’ve covered. He has certainly been known to lie about what he really wants and what he has the power to do.

                But maybe you’re right and the problem is simply intractable in a way that the other regulatory problems he tackled weren’t. We’ve created some sort of regulatory Chinese finger trap/Klein bottle/Rubik’s Cube fusion that has the best minds flummoxed and we’re simply stuck with it forever. Maybe some day we’ll meet hyperintelligent aliens who can detangle it, or at least come up with a first step in the process for us to try.Report

              • Avatar Stillwater in reply to Troublesome Frog
                Ignored
                says:

                Or maybe he didn’t have the backing of the congressional Dem caucuses. We don’t need to go all Chinese finger trap here.Report

              • Avatar Stillwater in reply to Troublesome Frog
                Ignored
                says:

                Btw, this reminds me of the “Obama sold us out!” arguments when the public option didn’t pass the Lieberman veto.Report

              • Avatar Troublesome Frog in reply to Stillwater
                Ignored
                says:

                Clearly your understanding of the whole thing is deeper and more nuanced than mine. It would be nice to hear the details, but if you prefer to just shake your head and smile sadly at my naiveté, that’s an option too.Report

              • Avatar Stillwater in reply to Troublesome Frog
                Ignored
                says:

                Not to get antagonistic here, but you haven’t offered a single reason why Obama didn’t pursue legalization policy. I’ve at least fulfilled that criterion.

                Look, I’m no Obologist, but criticizing him for not making your dreams come true is something you can only take up with Pedro. Or Trump.Report

              • Avatar Troublesome Frog in reply to Stillwater
                Ignored
                says:

                I could easily come up with a reason why he didn’t pursue legalization: it would require an act of Congress that wouldn’t pass and he doesn’t necessarily believe it’s a great idea. But that’s not what I’m perplexed about. I’m perplexed about the scheduling question. Congress set the criteria defining the schedules, but as far as I can tell, the DEA actually does the evaluation and determines what goes where.

                So we have a few facts:

                1) The DEA sets the schedules based on the currently available data and some definitions from Congress, and it does so without asking anybody outside the executive branch for permission.
                2) The marijuana ruling appears to be completely insane to anybody who isn’t in the DEA. Like, really obviously insane to the point where the DEA would be a laughingstock if it didn’t have so many guns.
                3) Research on marijuana that may improve the DEA’s ability to is also controlled and tightly limited by the DEA.
                4) The DEA ultimately traces its reporting roots back to the President.
                5) President Obama seems like a reasonable guy and generally has made noises about marijuana policy needing reform.

                It seems like *something* could be done here in the name of good policy without getting Congress involved and without the expenditure of massive amounts of political capital, just like he managed to do in other areas. But nothing happened. I don’t have an explanation for that, and I regard it as a pretty notable policy failure, given that the states seem to think it’s an important issue.

                I also never really understood the “Waaah, baby didn’t get everything he wanted,” response to these sorts of questions. I mean, I get it with big compromise legislation. Some people are bitchy and want everything their way. But it’s not like there was a big reform on drug policy and some concessions were made in the process. It was just not addressed, and now we’re stuck with increasing conflicts between the states and the feds.Report

              • Avatar Francis in reply to Troublesome Frog
                Ignored
                says:

                “The marijuana ruling appears to be completely insane to anybody who isn’t in the DEA.”

                If you’re going to go down this road, then you really should give the gov’t side of the case. This is the same complaint I have with Jaybird. The government side is out there in public documents, including even a summary in a lengthy wikipedia article. Instead of presuming that govt scientists are evil/stupid/both, how about presenting a legitimate digest of the gov’t position?

                One major problem, for example, according to the gov’t is that MJ is not one “drug”, but several. And even MJ advocates admit that formulations between strains vary widely. So looking at the issue purely from the point of a drug distribution system, you have hundreds if not thousands of different product, each of which can vary dramatically from one harvest to the next. And the actual delivery system, from edibles to inhalation, is completely unstructured and known to deliver overdoses (I’m Too Stoned!, quoth some NY Times columnist) on a regular basis.

                Descheduling this class of products in this environment is insane! If the activist community can bring a consistent, reliable product to the govt, then they can look at that one product. But absent legislative direction to the contrary, if I were in charge I wouldn’t take on this fight. The clear legislative intent is to be risk-averse. Let Congress lead on this issue; that’s their job.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Have you noticed that we’ve shifted from “Obama telling the DEA to move it from Schedule 1 to Schedule 2 would be breaking the law!” to “But Obama telling the DEA to move it from Schedule 1 to Schedule 2 would be an example of Obama inappropriately pushing the limits of his Constitutional Authority!”

                Of all the freakin’ areas where we might have decided that the limits of Executive Constitutional Authority were sacred…Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                Obama telling the DEA to move marijuana from schedule I to schedule II, and the DEA then doing that would likely be against the law.Report

              • Avatar Morat20 in reply to Gaelen
                Ignored
                says:

                It can’t be, because the DEA reconsidered/changed a decision once.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                The DEA reconsidered/changed a decision in the last couple of months.

                The argument that the DEA reconsidering/changing a decision it has made is impossible (if not illegal) is therefore kinda suspect.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                No one is saying that! Jesus Christ, did you read the links. They deal with the rules, procedures, and standards for changing schedules. The president (Obama) is no where in there. The only direct authority he has in is hiring and firing (and the bully pulpit).Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                That’s not an argument anyone’s making, Jaybird. Not even close.

                You’re ignoring everything people are telling you. You’re not listening to anyone on this subject. At all.

                You’ve already reinvented the Saturday Night Massacre and made it a good thing in your mind. This from the guy who talks constantly of high-trust, high collaboration societies.Report

              • Avatar switters in reply to Gaelen
                Ignored
                says:

                Gaelen,

                Perhaps. Could Obama start looking for a new DEA head and in a very public manner make the case that he wants to hire a head who will interpret the Controlled Substances Act in accordance with its plain meaning? And also note what the plain meaning of the requirements for a schedule 1 drug are, and that none of them apply to marijuana, let alone all three. Or is that illegal too? If that is illegal, is it more or less illegal than killiing anwar al-alwaki (sp?), or intercepting phone calls between us citizens without a warrant?

                Just trying to gauge how unreasonable what I am asking for is.Report

              • Avatar Morat20 in reply to switters
                Ignored
                says:

                Said DEA head would still have to go through the rather lengthy process of rescheduling. We don’t let the heads of those agencies work by whim either.

                Set priorities, yes. But not randomly change regulations because they feel like it. (And drug classifications are regulations).Report

              • Avatar switters in reply to Morat20
                Ignored
                says:

                Right. So he could have just hired a DEA head sympathetic to rescheduling. Maybe an FDA head able to see reality for what it is, that its been accepted medicine, in every way except according to the FDA, for years. Can’t imagine how hard it would have been to find those, whether he explicity acknowledged it as a requirement not.

                I am not buying JayBirds “Obama could have done this unilaterally/with the stroke of a pen/easily” if thats what he is actually saying. But to the extent Jaybird is simply pointing out that Obama was not nearly as helpful on this front as he could have been, I buy it. And that Obama indicating he may pick up the mantle after he is out of office is disingenuous.Report

              • Avatar Gaelen in reply to switters
                Ignored
                says:

                Switters,

                He sure could. It might not help if there was a legal challenge to the reclassification, but it is something he could do.

                I agree with you regarding Marijuana classification. The FDA and DEA (and maybe the AMA) do not agree with us. Unfortunately they got to decide most recent reclassification petition.

                Comparing it to the killing of US citizens or warrant less surveillance doesn’t do anything to illuminate this issue. Those are cases at the outer limits of constitutional law, classification of marijuana is administrative procedure with decades of precedent.Report

              • Avatar switters in reply to Gaelen
                Ignored
                says:

                I don’t like it, but I accept that everything about politics is about politics. So i am not comparing it to extra judicial killing. I am saying that Obama, and every other president, treats the law like their little bitch whenever it gets in the way of something they deem important. And on issues much more substantive than the classifcation of drugs. Obama is no exception here.

                So my main point is yeah, there were some institution barriers to O doing what we wanted him too. And there were some political barriers too. He approached both with an amount of caution that leads me to believe he either doesn’t want to reclassify, or at best is unwilling to expend an oz of political capital. And that’s fine. Business as usual. I just don’t want anyone blowing smoke up my ass, particularly O, claiming that isn’t the case.Report

              • Avatar switters in reply to Francis
                Ignored
                says:

                Francis,

                Haven’t the states that legalized it essentially descheduled it on their own? Have the results been those that only the “insane” could countenance.

                Schedule 1 :

                The drug or other substance has a high potential for abuse.
                The drug or other substance has no currently accepted medical use in treatment in the United States.
                There is a lack of accepted safety for use of the drug or other substance under medical supervision.[31]

                Schedule II

                The drug or other substances have a high potential for abuse
                The drug or other substances have currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions
                Abuse of the drug or other substances may lead to severe psychological or physical dependence.[31]

                Does MJ sound like it fits either one of those to you? Is there any way a reasonably informed person could make the argument that MJ fits either of those schedules?

                IS Obama legally prohibited from saying “Its nonsensical to continue to schedule MJ on Schedule 1?” If not, has he done it? If he hasn’t, may I criticize him for not pushing as hard in this area as I think he should have, and for being weak kneed politically about it? Or has his dealings with the WoD been perfect in every sense?Report

              • Avatar Oscar Gordon in reply to Francis
                Ignored
                says:

                Everything you just said is a fantastic argument for putting it on Schedule II, not for keeping it on Schedule I.

                Schedule II opens it up to wider medical and pharmacological research, so that a more consistent formulation and delivery could be developed.

                Many groups have petitioned for it to go to Schedule II, and the DEA shuts them down every time, using the same circular reasoning you just summarized.Report

              • Avatar Michael Cain in reply to Oscar Gordon
                Ignored
                says:

                Schedule II opens it up to wider medical and pharmacological research, so that a more consistent formulation and delivery could be developed.

                States accounting for ~20% of the total population have now said, “Just take it off the f*cking list, it’s an intoxicant like ethanol and we will regulate it that way.” States accounting for a much larger portion of the total population have said, “No further research is needed, it’s okay for docs to write prescriptions now.” Many of those are no doubt like Colorado was shortly before legalization passed: “I know a guy who can get you some” had become “I know a doc who will write you a prescription”, wink-wink nudge-nudge.

                I think a more accurate comparison is popular election of Senators. States were implementing it in various ways. The biggest difference was that the federal government wasn’t as intrusive in those days, and the executive branch lacked a muscular enforcement arm. The handwriting was on the wall, but Congress dragged its feet until it was clear that a Constitutional Convention was coming unless they acted. The handwriting is on the wall again. At some point, Congress’s hand will be forced.

                Or at least, if the Republicans think they can clamp down so hard that such forcing can’t happen, they’ll have bigger problems than marijuana.Report

              • Avatar Troublesome Frog in reply to Francis
                Ignored
                says:

                This is a very interesting post. Thanks, @francisReport

              • Avatar DavidTC in reply to Francis
                Ignored
                says:

                @francis
                And even MJ advocates admit that formulations between strains vary widely. So looking at the issue purely from the point of a drug distribution system, you have hundreds if not thousands of different product, each of which can vary dramatically from one harvest to the next.

                Wait wait wait. This is the DEA’s *own fault, because they lumped everything in cannabis together and regulated it as one thing, and then turned around and complained they didn’t know how much of each individual thing there was.

                By that logic, they could outlaw anything. They could outlaw ‘alcoholic drinks’ because no one knows how much alcohol they have them in them…are they 180 proof vodka or 5% alcohol beer? NO ONE KNOWS! *waves arms wildly*.

                Hell, they could outlaw *sandwiches*(1) ‘Who knows how much meat they have in them? Or bread! Some have mustard, some do not! They are of such inconsistent quality that they could have *anything* in them! IT’S TOTAL CHAOS!’

                The problem is easily solved if the DEA regulated the 400+ chemicals that *made up cannabis* as individual things.

                At which point the correct response would be for 400+ cookie-cutter petitions to be filed saying ‘This is being used medically as part of the whole cannabis plant in the following states. The amount in a prescribed dose varies between 0 and ___’.

                Or, even better, instead of 400+, just the ones that they use to classify something *as* marijuana.

                Or, to put it another way: If the DEA claims that marijuana does not quality as a drug because it is too random in composition, than *how the hell can they regulate it*?

                Think on that for a second. There are certain rules about what is and is not marijuana. These rules include certain chemicals. Those chemicals are what is *actually* regulated. (Go see if you can distribute THC pills.)

                Those chemicals, not ‘marijuana’, are the actual drug(s) being regulated. And those chemicals, right now, are being prescribed by doctors. (As part of the marijuana plant, yes, but *how* those chemicals are prescribed is not important, the only test is that they have to be prescribed. They, literally, are prescribed. This is a true fact in the actual real world.)

                tl;dr – The DEA is deliberately manipulating their own rules to group a bunch of stuff together randomly, and then asserting they can’t do anything because they’re only allowed to allow pure things or things with known qualities.

                When in reality they could just put all those various chemicals individually on schedule II, and then a doctor could give people a prescription for them *mixed together however he wants*…aka he does not care how they are mixed, you are in charge of your own dosage, and you get it as part of a plant to smoke.

                1) They had to argue sandwiches are subject to abuse, but, factually, they’d probably have just as firm ground there as marijuana.

                EDIT: Actually, if the DEA is so confused as to the behavior of marijuana to the extent they can’t figure out how it’s prescribed…how the hell *did* they determine it was subject to abuse, or even *was a substance at all*? Inquiring minds want to know.Report

              • Avatar Kolohe in reply to Troublesome Frog
                Ignored
                says:

                Frog, I’m with you in this entire line of thought and reasoning, but it must be pointed out that the DADT repeal was legislative in the end (per Art 1 Sect 8 Congressional powers)

                Because the DADT policy was legislative to begin with.(and it was a compromise, and and improvement over the then existing policy that homosexuals needed to rooted out of the armed forces like they were terrorists or Communists)

                (Like literally, there were three questions on the application forms, one asking if you’ve ever wanted to overthrow the US government, one asking if you are or were a member of the Communist party, and one asking if you were a homosexual. I can’t remember which order they were asked.)Report

  16. Avatar Francis
    Ignored
    says:

    Acceptable Presidential behavior: Dear Congess, I request an appropriation for the DEA to initiate a formal rule-making process to re-analyze prior rules on the scheduling of MJ, and and revision to the CSA that addresses MJ specifically / reworks the whole listing process.

    Unacceptable Presidential behavior: Mr career bureaucrat, I’m directing you to reschedule MJ. If you won’t reschedule MJ by year end, you’re fired.

    The first is how govt actually works; the second is the weird wrong version of what some people want Executive power to be when they’re not getting what they want out of D.C.Report

    • Avatar Jaybird in reply to Francis
      Ignored
      says:

      What’s to really request money for?

      “Hey, we’ve noticed that a buttload of states have legalized marijuana for medicinal use (if not recreational!) and the only real health crisis that has been created is that music has started getting good again after a real crappy decade there. As such, we’ve decided to move MJ from the schedule that says The drug or other substance has no currently accepted medical use in treatment in the United States to the schedule that says The drug or other substances have currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions because, I mean, just look. It has currently accepted medical use in treatment in the United States. Abre tus Ojos, am I right?”

      Francis: Abre tus ojos.Report

      • Avatar Gaelen in reply to Jaybird
        Ignored
        says:

        If only notice and comment rulemaking could be accomplished by the agency simply deciding the issue under review has basically been decided.Report

      • Avatar Francis in reply to Jaybird
        Ignored
        says:

        “What’s to really request money for?”

        To comply with the goddamn law. You want the agency decision to be legal, yes? To stand up in court against a challenge that the agency violated both the substantive law (the CSA) and procedural law (the APA) in issuing the new rule? Then the agency has to follow its own rules. One key rule of administrative law is that decisions to reverse prior decisions cannot be made arbitrarily.

        All of admin law is essentially reducible to a three-step process: build an administrative record (develop the evidence); prepare findings (apply the law to the evidence); make a decision (which must be consistent with the findings). If you short-cut any of those steps, the local court will be happy to explain your mistakes to you and tell you to go try again.

        If you want to strip the agency of its authority over a particular issue, then you need to go through Congress. Expecting that the President has the authority to direct the outcome of a particular agency process shows a fundamental misunderstanding as to how agencies work.

        And cross-agency comparisons are pretty much useless, unless you have a deep understanding of (a) the substantive laws at issue; (b) the organic laws by which the agencies were created and operates; and (c) the application of the APA to those agency decisions. As a matter of both law and practice, Executive authority to direct particular outcomes varies dramatically both between and within agencies.Report

        • Avatar Jaybird in reply to Francis
          Ignored
          says:

          Did they recently have a chance to look at MMJ and see whether, here let me copy and paste this, “The drug or other substances have currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions”?

          Because, I submit to you, that if they did and they failed to reschedule it, we’ve got a failure going on.

          Like, a *MAJOR* failure.

          Failure to the point where it honestly makes the argument that the integrity of the system is at stake laughable because the failure demonstrates that the integrity of the system isn’t there in the first place.Report

          • Avatar Morat20 in reply to Jaybird
            Ignored
            says:

            I can’t decide if pot legalization has merely turned your brain off, or if you actually think that’s how government works.

            “Oh hey, guys, California has medical pot. Have Bob move MJ to Schedule II on Monday, k?” is not how it works..

            And if you’d turn your brain back on for a second, you’d realize why.Report

            • Avatar Jaybird in reply to Morat20
              Ignored
              says:

              They have had at least two reviews in the last five years:

              One in 2011.
              One in 2016.

              When did at least one state legalize medicinal? Dunno about the first one but I know that Colorado legalized medicinal in 2000. 11 and then 16 years prior to the two reviews.

              During both reviews, the DEA had opportunity to check to see if MMJ qualified as “The drug or other substance has no currently accepted medical use in treatment in the United States” *OR* if it qualified as “The drug or other substances have currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions.”

              During both reviews, do you think it would have been possible for the DEA review agency to have asked “Does the drug or other substances have currently accepted medical use in treatment in the United States?” and seen that Colorado, for example, had currently accepted medical use in treatment in the United States for 11 or 16 years.

              Because, lemme tell ya, it sure as hell looks like there are serious shenanigans going on. And this appearance of shenanigans is doing damage to your beloved integrity of the beloved institution.

              If you’re not noticing that, maybe we can wait until we can blame Trump instead of Obama and it’ll be more apparent.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Okay, so now you’ve shifted the goalposts. You’ve gone from “Obama should fire multiple people in multiple departments until he legalizes MJ” to “The DEA could have changes pot’s classification through their own procedures during the last eight years”.

                Indeed they could have. (Oh there’s some complexities in any case, including the buyins of other departments and whether or not that’s a sufficient review period or whether or not there was enough studies to validate it — because just because a state things it has medical use doesn’t mean the DEA, the FDA, or anyone else has to accept that as binding. But that’s immaterial. They could have reviewed it, certainly.)

                Which is an entirely different discussion than the one you’ve been having until now. Unless you think those things are the same, in which case, I have to ask “WTF?”Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                I *NEVER* suggested that he fire people.

                I suggested that he hire people who were amenable to looking at MMJ during one of the two reviews we’ve had in the last year to bring MMJ into accordance with the law rather than people who, through their actions, would call the *INTEGRITY* of the *INSTITUTION* into *QUESTION*.

                To the point where he should ask for the resignation of those who did not appreciate how much integrity the institution calls for.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Oh bullshit, Jaybird. That’s firing and you know it.

                Go try that line on a child, it MIGHT work.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                In the private sector? You betcha.

                In the public sector? Pull the other one.Report

              • Avatar Oscar Gordon in reply to Morat20
                Ignored
                says:

                Not really.

                Obama: I understand there is a petition to reschedule pot on your desk.
                Leonhart: Yes, there is.
                Obama: I’m getting a lot of pressure to move it off of Schedule I, especially from states that have approved medical MJ.
                Leonhart: Nope, not gonna happen.
                Obama: But you have medical professionals prescribing it to patients to treat medical conditions, so it meets the requirement of Schedule II.
                Leonhart: I disagree.
                Obama: OK, you are going to need to square this circle for me…

                Now, it’s very possible she did square that circle to his satisfaction, or she explained the political fight he’d be in if he pushed hard for rescheduling, which is all fine and dandy. But if either is true, he did a really bad job of explaining that to the public, and by bad job, I mean he didn’t explain anything.

                If neither is true, then Obama has a department head who flat out is running counter to his political goals (assuming he truly wants MJ rescheduled) and he is well within his right as President to ask for her resignation.Report

              • Avatar Jaybird in reply to Oscar Gordon
                Ignored
                says:

                Now, it’s very possible she did square that circle to his satisfaction, or she explained the political fight he’d be in if he pushed hard for rescheduling, which is all fine and dandy. But if either is true, he did a really bad job of explaining that to the public, and by bad job, I mean he didn’t explain anything.

                Worse than that.

                Obama is causing people to question the integrity of the institution by publicly saying that he thinks that marijuana should be treated like alcohol.Report

              • Avatar Morat20 in reply to Oscar Gordon
                Ignored
                says:

                Leonhart also lacks that authority to dictate that result.

                You think the head of, say, the EPA can just dictate out regulations to his staff, based on his own personal ideas of what (say) the Clean Air and Water Act require?

                (Hint: They can’t).

                Rule-making — and this includes drug-scheduling — is a rather lengthy and involved process for lots of reasons. And preventing the appointed head of said agencies (including the President) from dictating results is one of them. Heck, if the President could do that, why would he bother with Executive Orders anyways?Report

              • Avatar Morat20 in reply to Oscar Gordon
                Ignored
                says:

                As we have written before, rescheduling is not a simple process for the executive branch.1 A petition, initiated from an outside party or from within the administration, must be reviewed first by the Department of Health and Human
                Services (via the Food and Drug Administration [FDA]), and then by the attorney general, who typically delegates
                that task to the Drug Enforcement Administration (DEA), on eight key factors to determine if there is a scientifically accepted medical use for the drug, its potential for and history of abuse, and any risk to the public health.

                Historically, four petitions that have been initiated to reschedule marijuana or remove it from the schedules entirely have been denied or stalled by DEA with disposition times ranging from five to more than 20 years.3

                Congressional rescheduling of a drug is a much simpler process. Congress can amend the Controlled Substances
                Act (CSA) to move cannabis to Schedule II (or to another schedule or off the schedules entirely) without going through
                the same administrative process that binds the attorney general. Many bills have been introduced, the first in 1981,
                that would either move marijuana to Schedule II or remove it from the schedules entirely. Each proposal has died
                in committee. The recently-introduced CARERS Act (Compassionate Access, Research Expansion, and Respect
                States Act of 2015) would also move marijuana to Schedule II and remove cannabidiol (CBD) oil from the schedules
                (among other reforms). This legislation has garnered more attention than previous efforts in Congress. While it may
                not be politically expedient for all members, congressional rescheduling is certainly more straightforward than the
                executive branch option.

                That can’t be right, Jaybird assures me the President can fire his way to rescheduling.Report

              • Avatar Mike Schilling in reply to Morat20
                Ignored
                says:

                I don’t see any need to reschedule marijuana. Two joints in the morning, two joints at night, and two joints in the afternoon is perfect.Report

              • Avatar Chip Daniels in reply to Mike Schilling
                Ignored
                says:

                But if you smoke two joints before you smoke two joints, and then smoke two more, how many is that?

                The math starts to get a bit fuzzy.Report

              • Avatar switters in reply to Morat20
                Ignored
                says:

                See 21 USC 811(b). Sounds like the Secretary of the HHS can basically do exaactly what you think he/she can’t. Will there be some boxes that need checking? Sure? But if our bureaucrats are clever enough to justify torture and extra judicial killings, then surely Obama could have found someone clever enough to write a justification, based on 21 USC 811(c) 1-8, for the Secretary of the HHS to use as justification to reschedule.Report

              • Avatar switters in reply to switters
                Ignored
                says:

                Ref code section includes this:
                “The evaluation and the recommendations of the Secretary shall be made in writing and submitted to the Attorney General within a reasonable time. The recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance.”Report

              • Avatar Morat20 in reply to switters
                Ignored
                says:

                I’d be careful taking a single section of the code in isolation. You can come to some real wrong conclusions that way. (That’s as a general warning, not a statement over your interpretation of that section).

                For instance, you skipped the preceding several lines (which lay out “factors” that have to be considered — those have to be shown to have been taken into consideration, which means anything from studies to comment periods), and I believe section (d) currently applies to pot which is a whole different — and very complex –wrinkle, and then there this simple sounding bit in section (a) “Rules of the Attorney General under this subsection shall be made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by subchapter II of chapter 5 of title 5. Proceedings for the issuance, amendment, or repeal of such rules may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary, or (3) on the petition of any interested party.”

                Section A there is, for instance, why neither the President nor the head of the DEA can reschedule pot by fiat. Doing so would be illegal because it would bypass the rulemaking procedures mentioned in Section A.Report

              • Avatar Gaelen in reply to switters
                Ignored
                says:

                Under my reading the Secretary’s recommendation is only binding if they find that the drug shouldn’t be controlled and on scientific matters (not entirely sure how far that goes).Report

              • Avatar Oscar Gordon in reply to Morat20
                Ignored
                says:

                Powerful department heads can’t dictate a result, but they sure as hell can encourage one, especially on edge cases like MJ. Certainly there are cases where things squarely fall into a given slot, and there is no wiggle room, but at the same time, lots of things are judgement calls, and that is exactly what department heads are for, to make those calls.

                For instance, if the DEA head went to his/her staff and said, “POTUS wants to investigate the potential for putting MJ on Schedule II, go find me any and all supporting evidence for that decision”, people would go find something. Now that supporting evidence might be very weak, so weak that Francis is right that judicial review would toss it out on it’s ear. But at the same time, if there is a lot of evidence in support of rescheduling, but the DEA chooses not to look very hard for it, or if the DEA has actively prevented such evidence from being created, how likely is a judge going to not take their word for it that scant evidence exists?

                I mean, I’ve been looking for what evidence was used in the most recent decision and my Google Fu is either weak, or the DEA hasn’t released it.Report

              • Avatar Morat20 in reply to Oscar Gordon
                Ignored
                says:

                Even then, you’re looking at a process Congress can cut-off at the knees anytime it feels like it. Starting with simply denying funding to the effort, which has stymied things that Obama had more political capital invested in (such as closing Gitmo) than pot legalization.

                A simple rider attached to a budget bill can basically prevent DEA, HHS, or FDA from spending a penny to reschedule pot. Which means nobody can spend even a second working on it, entirely outside of studies, panels, public comments, etc.

                The link you posted made that exact point — rescheduling from the Executive side is a lengthy PITA, whereas Congress could do it pretty much at whim.Report

              • Avatar Oscar Gordon in reply to Morat20
                Ignored
                says:

                And how much impact do you think it would have if the head of the DEA, or the FDA, or the HHS, testified before congress that the drug should be rescheduled?

                I agree that I don’t think Obama really cared to reschedule it, and the whole expansion of research grade suppliers and offering to approve more researchers was the little bit he was willing to do.

                I’m just pissed he wasn’t honest about it.

                And I’m anxious that Trump will cut it all off.Report

              • Avatar Morat20 in reply to Oscar Gordon
                Ignored
                says:

                I dunno. More or less than 25 states decriminalizing it?

                I’m just pointing out that your very own link said if you wanted it done in any reasonable amount of time, go through Congress.

                (That’s not getting into the fact that for the last six years, Congress would have reflexively denied water is wet if a member of the Obama Executive branch said it was)Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “Because, lemme tell ya, it sure as hell looks like there are serious shenanigans going on.”

                please read this and, more importantly, the published rules. (They are only 80 pages each.) Then get back to me as to what the shenanigans are.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Here, I’ll tell you what the shenanigans are again.

                This is from the DEA. (So it’s not DEAD-iversion but DEA-diversion)

                (1) Schedule I.—

                (A) The drug or other substance has a high potential for abuse.

                (B) The drug or other substance has no currently accepted medical use in treatment in the United States.

                (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

                Here is where it gets interesting:

                2) Schedule II.—

                (A) The drug or other substance has a high potential for abuse.

                (B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.

                (C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.

                I’m going to ask you to look at B from both of those.

                Then I’m going to point out that 25 states plus DC have legalized medical marijuana.

                Now I’m going to ask you to look at both B’s again.

                Then I’m going to ask you whether the drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.

                Does the drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions?

                If your answer is “yes, the drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions”, then I will say “there. *THAT* is where the shenanigans are.”

                Is this one of those things where I’m going to have to read Atlas Shrugged before I disagree with you about objectivism?Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Shorter Jaybird: I refuse to even dip my toe into the complexities of how an Executive branch agency works, how rules and regulations are promulgated, and certainly not into one that intersects with multiple other agencies and the requirements they face under the CSA (among other laws).

                And the drunk guy at the bar has a great plan for dealing with ISIS.

                You’re not gonna hear it, but I’m gonna say it again: The President isn’t the King, and can’t dictate regulatory outcomes. Neither is, unsurprisingly, the head of an executive branch agency. Many of the reasons for this should be really obvious, with even a few second’s thought.

                However, you’re so invested in your desired outcome that you are literally refusing to check your facts or study the process you’re jabbering about.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                It’s weird. I can explain my position easy and in a short amount of time using fewer than 500 words.

                My opponents tell me I’m wrong and that I have to read an 80 page document as to why.

                I mean, they’re not even pointing to the rules that they’re saying that would be broken by rescheduling Marijuana to Schedule II. They’re just saying “there are rules and they’re over there and it’s not my job to educate you”.

                I’m pointing to the law, to the 25 states, to the law, to the 25 states, and back to the law.

                You’re pointing to something that you say is too complex to explain but, seriously, I’m wrong.

                And I’m calling bullshit.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Oh god, you’re arguing page length?

                And it’s not too complex to explain. People have explained it. You just don’t like the answer, so now you’re down to arguing “This bill is too many pages! Therefore it must be bad law!”.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                When it comes to the issue of whether shenanigans exist, yes.

                I am going to argue page length.

                I claim that shenanigans exist. I showed why I think that shenanigans exist.

                Instead of arguing against why I think that shenanigans do not exist (“no! look at this other part of the law, that I can quote for you here!”), I am told to read an 80 page document.

                I’d rather have my shenanigan hypothesis falsified by my opponents rather than them telling me that the falsification of my hypothesis is somewhere on the web, I should just google it, it’s not their job to educate me.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                Heaven forbid you would do a bit of primary research before going off half cocked.

                I mean my links went to the Federal register and the actual statute in question. You could read them in, at most, 10 minutes. You didn’t.

                Nobody is arguing with you about whether Marijuana should be a schedule I drug. Stop acting like anybody is.Report

              • Avatar Morat20 in reply to Gaelen
                Ignored
                says:

                Frankly, this appears more akin to an extended whine that it’s not as easy and quick as he wants it to be.

                Complete with stubborn refusal to admit it, or even read claims to the contrary, and an awful lot of goal shifting.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                I did a bit of primary research. I linked to the original documents, showed the important excerpts, and explained why I thought that there were shenanigans.

                A refutation that says “here, read this 80 page document” without bothering to do the work that I proved willing to do?

                Yeah, that’s bullshit.

                How’s this? *YOU* go through that 80 page document and *YOU* find the paragraphs that refute me.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                So the answer is no, you didn’t read what I linked.

                Jaybird, you advocated firing the head of the DEA because they wouldn’t approve reclassification. A number of people pushed back because it sets a bad precedent.

                You argued that . . . hold on here’s your quotes.

                So the DEA hears that it has made it to the US?

                WHAMMO. Schedule 1.

                Which tells you what?

                That the DEA is in charge of what gets scheduled and where. Not congress. Not the courts.

                So the DEA hears that it has made it to the US?

                WHAMMO. Schedule 1.

                Which tells you what?

                That the DEA is in charge of what gets scheduled and where. Not congress. Not the courts.

                The links I provided show why this is not applicable situation.* You seem to have dropped those argument and moved to arguing about whether marijuana should be a schedule I drug (we all agree it shouldn’t), or whether Obama should have appointed someone better (he should).

                *I linked to the specific federal register sections on this exact issue. Kratom was put in schedule I temporary under a specific statutory authority(21 USC 811(h)), and was in the notice and comment rulemaking when the AG decided to remove it from schedule I because of the comments he was getting. Not at all like reclassifying an already classified drug.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                No, I didn’t.

                I generally assume that “read this 80 page document!” arguments are bullshit.

                You know what arguments I don’t tend to assume are bullshit? “Here’s an important couple of paragraphs. I found them at this link, in this particular section. Watch out, it’s more than 80 pages, but I went through it and found this part that is directly pertinent to what we’re arguing here.”

                You want me to read an 80 page document for a sentence that I can use to tell you that you’re wrong? That’s how you do that.

                The links I provided show why this is not applicable situation.

                Sure they did! In the middle somewhere!

                You seem to have dropped those argument and moved to arguing about whether marijuana should be a schedule I drug (we all agree it shouldn’t), or whether Obama should have appointed someone better (he should).

                Because you’re not quoting your document and, without reason to believe that the stuff you’re not even bothering to excerpt is relevant, I’m moving along to the parts of the argument that have stuff where I am willing to excerpt on your behalf and then link to original documents for you to peruse if you suspect that my excerpts are taken out of context.

                You’re welcome.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                Here’s an important couple of paragraphs. I found them at this link, in this particular section.

                I linked to a 12 page document and told you the section heading you should read.

                Please read this. Look specifically at legal authority.

                It was about a half scroll down.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                Oh, yeah. I read that. It didn’t move me.

                There.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                It wasn’t supposed to. It just showed why your Kratom argument was bunk.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                You can call bullshit all you want. It would be nice that instead you respond to the points that Gaelan and I actually made. Let me put down here my rewrite of your hypothetical conversation that started this whole bit:

                “Anyway, why I asked you here was to see whether you could move the old ‘Emm Jay’ down to schedule 3 or 4, maybe.”

                “Sorry, not today. We’ll need a separate appropriation to cover at least a couple years worth of work for a whole group. We will need to take in an enormous amount of evidence about the chemical composition of the different strains of MJ that will be placed on the new schedule. We’ll need to generate a body of research that supports the change in decision. We’ll have to go through several rounds of notice-and-comment to be sure that we have a defensible final rule. But if there’s a strong commitment from the head of the agency to support staff through this process and you can deliver on the appropriation, then OK.”

                “Can I have your letter of resignation?”

                “For telling you what the law is? No.”Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Well, out of curiosity, did the DEA have two chances in the last 5 years to reschedule?

                I mean, hypothetically?

                The things you specifically mentioned them needing, did they have?

                Because, as far as I can tell, *THEY DID*.

                And they failed to reschedule it both times.

                And since, apparently, let me cut and paste this:
                “Nobody is arguing with you about whether Marijuana should be a schedule I drug. Stop acting like anybody is.”

                We’re in a place where we’re arguing over… what?Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “we’re arguing over… what?”

                The process by which a federal agency changes its mind. As far as I’m concerned, all I’ve been arguing is:

                a. there is a law — the APA — which plays an important role in how the relevant agencies implement requests to reschedule MJ;

                b. the APA imposes a pretty heavy burden on federal agencies on the process that they go through before they change their mind;

                c. trivializing and/or ignoring the existence of this law isn’t going to make it go away, it will just lead to judicial reversal of the outcome you want;

                d. on the substantive point of the scheduling decision, the DEA is defending its current decision not to reschedule on several grounds, one of which is that MJ is actually many different drugs.

                e. Therefore, the likely route to changing the most recent decision is either (i) get Congress to do it in a new law; or (ii) make a concerted effort, which will require Congressional support through appropriations and Executive leadership, to reschedule a set of strains with consistent known chemical makeup.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Well, as a soon-to-be-former-president, I’m glad that Obama will finally have the megaphone he needs to bring this to everybody’s attention.Report

              • Avatar Oscar Gordon in reply to Francis
                Ignored
                says:

                Again, it’s placing it above the likes of cocaine and opium with regard to risk and potential for abuse.

                I want to see actual evidence that there is a higher potential for abuse than the likes of cocaine or opium or anything else on schedule II, because everything I’ve read places it on par with alcohol and tobacco.

                As for accepted medical usage, etc. – recognize that the DEA has pretty actively resisted efforts to study MJ up until now. The effort described at the link you provide is a frank departure from previous actions, and I’m not entirely convinced they’ll actually allow a wider range of suppliers and researchers. We are in a spot where there is insufficient medical evidence because the agency making that determination was actively resisting the ability of medical evidence to be created.Report

              • Avatar Morat20 in reply to Oscar Gordon
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                says:

                I’m fairly sure Francis (and certainly myself) think pot is incorrectly scheduled.

                This entire conversation has been Jaybird veering between “He can just snap his fingers and make it happen!” to “Maybe he can’t, but he can Saturday Night Massacre his way until someone can!” on rescheduling it, and everyone else saying “That’s not how it works” and listing various reasons WHY that doesn’t work, ranging from procedural (“This is how rescheduling works and some of the complexities”) to pragmatic (“The head of the DEA can’t reschedule a drug at whim anymore than the head of the IRS can hand pick out someone for audit — crap hits the fan, because it’s abuse of power”) to political (“Firing your way to compliance is a good way to get impeached, and do you really WANT the President to have that power?”)

                I don’t think anyone here is saying “MJ should be Schedule 1”. What people are saying is “Moving it off Schedule 1 is kinda difficult, for lots of reasons, starting with how the CSA works, and the fact that ‘pot’ is actually a bit harder to define than you’d think, and frankly regulatory processes like this are slow and involved especially when dealing with changing long established decisions”.Report

              • Avatar Oscar Gordon in reply to Morat20
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                says:

                I’m saying that the DEA is, especially given cocaine and opium, strangely committed to keeping MJ on schedule 1.

                That strikes me as odd enough that I don’t believe the public line as to why. And it’s enough of an edge case that if a president wanted to, they should be able to encourage their department heads to make it happen.

                So either there is a strong but quiet lobby keeping it there (Pharma, Alcohol, Tobacco, whatever), or (per @michael-cain) it’s still a nasty political hot potato, and Obama was quiet about that because there are still a lot of Dems who want it kept there.Report

              • Avatar Morat20 in reply to Oscar Gordon
                Ignored
                says:

                FWIW, several cocaine and opium derivatives are commonly used medications — and have been, even prior to the CSA. And both were used as medications historically.

                So keeping it on Schedule II allows further study of both those drugs and derivatives.

                Pot, of course, got caught up in a weird business/political/racial tangle and got shoved in Schedule 1 because of it. Wrongly, as pretty much everyone here thinks.

                But there’s no push to reclassify cocaine and opium because their current positions are suitable. Pot’s been stuck on Schedule 1 for lots of reasons (again, political/business/racial/social ones, for starters and then there’s things like the catch-22 associated with proving a Schedule 1 drug has medical benefits if you can’t study it because it’s Schedule 1).

                This argument seems to veer back and forth on topics a lot, but as best I see it we’ve got two actual topics:

                1) Should pot be Schedule 1. Pretty much EVERYONE here thinks it shouldn’t be, and never should have been.
                2) Is moving it from Schedule 1 a simple, quick task or a hard one? That’s the real discussion, and the actual answer seems to be “Quick if by Congress, slow if by DEA” and the latter is undoubtedly somewhat inertia but frankly rescheduling drugs is a PITA even when they’re non-controversial, unless you’re up-scheduling it or it’s only recently been scheduled.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                That’s the real discussion, and the actual answer seems to be “Quick if by Congress, slow if by DEA” and the latter is undoubtedly somewhat inertia but frankly rescheduling drugs is a PITA even when they’re non-controversial, unless you’re up-scheduling it or it’s only recently been scheduled.

                Did the DEA have two opportunities recently to reschedule?

                I mean, if it did, that’d be pretty interesting.

                It certainly implies that it’s possible to attempt to reschedule it twice in two years by DEA.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                No. No it does not imply that.

                The 2016 decision was a denial of a 2009 petition to initiate a rulemaking regarding rescheduling marijuana. Here’s the linkReport

              • Avatar switters in reply to Jaybird
                Ignored
                says:

                If it makes you feel better Jaybird, I think the first petition to rescedule was submitted in 1972.

                The final decision on that petition, I believe, came out in 1994Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “It certainly implies that it’s possible to attempt to reschedule it twice in two years by DEA.”

                ** headdesk **

                No, there is no such implication.

                As shown on the very first page of each of the two Fed Reg notices, the agency decisions in 2016 were to a petition filed in 2011 and another filed in 2009.

                Admin law in the real world takes time and funding.

                Administrative actions to reverse an earlier decision take more time, more money and more commitment from the leadership.

                Administrative actions to reverse an earlier decision about a drug whose consumption was illegal in all 50 states until just recently take even more time, more funding and more commitment from both Executive and Congressional leadership.

                or, you can just send your political appointee down to the office of the senior civil servant in charge and demand either a new rule or a resignation. That’ll stand up in court. or not.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Let’s just hammer this out: so it would not have been possible for the DEA, following these reviews, for the DEA to say “Let’s make it Schedule II”?Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                What do you mean by “possible”?

                Institutionally? Politically? Legally? Procedurally? Conceptually?Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                Following the review, is there any possible world in which there exists an FDA that issued a report saying that it was their recommendation that Marijuana be rescheduled to Schedule II?Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                Ah. Logically possible!

                I’m sure there are quite a few worlds in which it was. So the question is: in what way(s) do worlds where pot was rescheduled under the Obama admin differ from the actual world?Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                Given the number of states that have legalized medicinal (25, plus DC!), it seems to me that it is not necessarily contradictory to conclude that there is a possible world in which the DEA came out and said “okay, fine, we’ll start to allow testing BUT THAT MEANS WE’RE KICKING DOWN RECREATIONAL DOORS IN COLORADO” or something like that.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                They did open it up for more testing.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                So then they’re breaking the law?Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Oh, wait, never mind. I thought that there were laws against testing of Sched 1 drugs. There aren’t. The tests merely have to be approved by the NIDA first.

                And, of course, NIDA would pretty much never allow tests to proceed.

                NIDA allowing testing is actually marginally less evil.

                Good for them.Report

              • Avatar Francis in reply to Jaybird
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                says:

                It seems to me that the current evidence does not support a reclassification of “cannabis”, and that a legal challenge to the agency action to do so would be successful. The basis for my conclusion is the agency’s assertion that “cannabis” as a species has been mutated into so many different strains that it is not meaningful to talk about cannabis as a single drug for the purpose of the re-classification analysis.

                Specifically responding to the point that “cannabis” has recognized medical purposes, the 2016 Rule noted that current regulations require that a “drug” have a “known and reproducible” chemistry, which simply is not the case for cannabis taken as a whole.

                This is, of course, a two-edged sword. Were we talking about an initial petition to schedule, the argument that the various sub-species need to be analyzed separately would be far more powerful (potent?).

                But this is where path dependence and burdens of proof under the APA take their bite. “Cannabis” is currently listed, so the burden is now on the agency to show why it is an appropriate agency action to change the designation.

                The published rule would suggest that every plant with psychoactive properties should be listed on Schedule I, with carve-outs for specific formulations on Schedule II. But arguing that the agency’s listing of cannabis and no other whole plant (note: I’m not sure this is true) constitutes an abuse of agency discretion which should be reversed in court is a really tough argument to make.

                This isn’t an equal protection case, after all. We’re talking about plants and chemicals, not people. So the mere fact that cannabis is being disproportionately targeted is unlikely to persuade any federal judge. And with regard to the agency’s failure to list other whole plants, courts are very deferential to an agency’s refusal to act. Unless there is clear statutory language imposing a mandatory duty on agency, courts are very reluctant to invade both the legislative sphere (budgeting) and the executive sphere (exercise of discretion) and mandate that an agency undertake an action.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                It seems to me that the current evidence does not support a reclassification of “cannabis”, and that a legal challenge to the agency action to do so would be successful.

                Well, let’s look at what Sched 1 says again:

                The drug or other substance has a high potential for abuse.

                Oh, hells yeah. People smoke it, eat it, and get stoned on it. The best anti-marijuana ad out there (no joke) is this one:

                https://youtu.be/fy_knXF_G6c

                People abuse weed. That’s true.

                The drug or other substance has no currently accepted medical use in treatment in the United States.

                This is false. Insert several sentences with strong language here.

                There is a lack of accepted safety for use of the drug or other substance under medical supervision.

                Might wanna define terms, here. Is this one of those things where I could point out that peanut allergies kill more people in a given year than marijuana? I need to know what we mean by “safety”. Because, it seems to me, that under medical supervision, you could do stuff like keep a person from driving. If you used edibles, you could keep a person from *SMOKING*… and, after that, safety pretty much just means “doesn’t die”, right?

                If I went through other schedules and did compare/contrasts and found one that I thought would be perfect for marijuana, would that count as “evidence” that it’s improperly scheduled?

                What would count as “evidence”, if not that?Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “This is false”.

                Nope, it’s true, and this is where the agency would lose if it took your position. As I pointed out, the term “drug” itself has its own specific definition, which includes that the substance have a reproducible chemistry. The species as a whole is listed, not particular compounds within the plant. So it’s simply not possible for the agency to make a finding that “cannabis” has a reproducible chemistry, because it just doesn’t. Any halfway decent admin lawyer could win on that point.

                Comparing/contrasting one listing decision to another is a possible path to arguing that a particular listing decision is arbitrary. But it’s a tough argument to make. Courts are very deferential to an agency’s decision how to interpret its own statutory mandate (this is called Chevron deference).

                One thing that’s worth pointing out is the difference between legislative action, agency action and judicial action.

                The Congress can place cannabis on Schedule II without any concern. (Placing it on a lower schedule arguably raises treaty issues.)

                With Executive leadership and Congressional cooperation, the DEA could put a particular cannabis-based drug on Schedule II, but it would have to go through the same regulatory approval process as any other drug.

                If the DEA doesn’t do what you want and you decide to sue, the judiciary is going to be very deferential to the agency’s decision. You will need to prove that the agency decision was “arbitrary and capricious”, a term of art in admin law that essentially means that the agency clearly violated either the substantive requirements of the CSA or the procedural requirements of the APA in reaching the decision that it did.

                I’m aware that this sucks. It’s also the law of the land. Executive power over domestic affairs (excluding the management of the military) is much weaker than most people understand.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                But the law does not say “The drug has no currently accepted medical use in treatment in the United States.”

                It says “The drug or other substance has no currently accepted medical use in treatment in the United States.”

                It’s still false unless you’d like to argue that “other substance” is a term of art?

                I’d also point out that schedule II uses the “drug or other substances” phrasing. Wanna see the whole line?

                Sure. We both do.

                The drug or other substances have currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions

                Still not evidence?Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                [deep sigh]

                Honestly, are you reading my comments? The question is not what I think is evidence. The only question is what the agency thinks. If the agency collapses the definition of “other substance” into “drug”, that is precisely the type of issue which is subject to Chevron deference.

                Yes, there is a legal argument to be made that “other substance” means that the agency should not apply the definition of “drug” to cannabis compounds. And in in my skim of the rule it looks like the agency didn’t look at the “other substance” language.

                OK, now what? Is the agency’s failure / refusal to consider whether cannabis “other substances” may have medical benefit a justiciable issue? Is it appropriate for a federal court to dig that deeply into how executive agencies interpret legislative direction? The Supreme Court said no (separation of powers, mostly), but there are plenty of commentators who think that Chevron was wrongly decided.

                Even in the absence of Chevron, if I were a federal judge I’d be very reluctant to reverse the agency decision and tell them that it needs to redo the decision. And if I were the agency head it’s hard to think of any circumstances in which I could see that the agency could grant the petition. (Key point: the court has no power to direct the agency to reschedule. The only thing that the court can do is tell the agency that it made mistakes in the course of its process.) The agency had substantial evidence that cannabis isn’t one thing but a whole range of things. Granting the petition to reschedule cannabis means that all possible formulations — no matter the strain and no matter the preparation — have a medical use.

                Again, we’re not talking about a single molecule. We’re talking about all the compounds in cannabis. Does that evidence exist in the record? Does the record evidence establish that there are NO possible cannabis “substances” for which there are no medical uses?

                So long as the record lacks evidence that all possible cannabis substances have medical use, then the agency decision to reschedule cannabis as a whole as Schedule II lacks evidentiary support. So the decision not to reschedule is amply supported by both facts and law, and had the decision gone the other way it would have easily been successfully challenged in court.Report

              • Avatar Jaybird in reply to Francis
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                says:

                Now: The question is not what I think is evidence.

                Earlier: It seems to me that the current evidence does not support a reclassification of “cannabis”, and that a legal challenge to the agency action to do so would be successful.

                Are you reading your comments?

                If all you want me to do is agree that the agency is capricious, hey. Agreed.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                Congrats! You caught me using sloppy languag in a blog comment. That’s awesome.

                To reiterate, what matters is how the agency interprets its statutory obligation and how a federal court reviews the agency action.

                I’ve tried to give you and the other readers (if any are left) a sense as to why it appears to me why the agency acted as it did earlier this year. Instead of saying Thanks, Francis for the work you did on educating me about the APA you act like a jerk.

                You’ve gone from believing that an appointee can just bully staff to using legal terms, like capricious, that you earlier admitted that you know nothing about. That’s enough progress for today.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                You caught me using sloppy languag in a blog comment.

                It wasn’t an issue before you started yelling about whether I even read your comments.

                Here’s where I boggle:

                We’ve got a situation where there isn’t a *SINGLE* person in these comments who believes that Marijuana should be schedule 1. Not even one.

                We’ve got a president who not only believes that it should be treated like alcohol, but goes to Rolling Freaking Stone magazine to say “Yeah, I think it should be treated like alcohol.” When he is still president!

                Not 2 years after he leaves the job and makes an offhand comment to an NPR host during the middle of a golf game somewhere in the middle of upstate New York.

                He said these things in Rolling Stone WHEN HE WAS STILL PRESIDENT.

                So, in investigating whether he could have done anything, we’ve looked at the laws that are covering this (and there is squish), we’ve looked at his ability to put people in charge who could nudge it toward Sched II (and there is squish), and we’ve looked at whether there were opportunities for the organization that is in charge of this kind of scheduling and, though there are debates over whether the organization in question can change the Scheduling, we still see that there was at least one opportunity to reschedule during his administration.

                And we’re talking about how the organization’s hands were tied?

                I say that while you may have proven that this couldn’t have been rescheduled with an executive order, you certainly haven’t proven that the way things happened were the only way that things could have possibly happened given the strict rules that the DEA has to follow and given the strict rules that the President has to follow and given the importance of maintaining the integrity of the system.

                If we’re in a place where we cannot find a SINGLE PERSON who is willing to argue that Cannabis ought to be Schedule 1 and, indeed, can even find *SITTING PRESIDENTS* who argue that it should be treated like alcohol and we look to see at an organization that had an opportunity to reschedule it, then we are in a situation where the integrity of the system HAS ALREADY BEEN COMPROMISED.

                I have given evidence for that. I have linked to government agencies, laws, and facts on the ground that demonstrate that the reality of the situation is that the DEA is acting in bad faith here. The counter-arguments consist of readings of the law that require, at the very least, ignoring certain clauses completely in order to provide cover for how, maybe, the DEA could have some ground to stand on. Maybe.

                I appreciate you arguing against me. Thank you for putting as much effort into your comments as you have.

                But you haven’t proven that the DEA is doing pretty much the only thing it could be doing.

                You’re only proven that the best possible arguments for the DEA doing what it’s doing still are insufficient to demonstrate that the DEA is not acting in bad faith.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                Dear Jaybird:

                Let me put it as simply as possible. I assert:

                A. The intersection of federal laws on controlled substances, on drug approval and on administrative procedure has made it functionally impossible to reschedule cannabis from Schedule I to Sched II through agency action.

                B. Moving cannabis to Sched II would require legislative action to revise existing laws.

                C. Moving a particular strain of cannabis on to Sched II can be done through agency action, but that action would require substantial executive leadership and legislative budgetary support.

                The legal basis for my assertions is spending about 15 years in the field of federal administrative law (specializing in the Endangered Species Act and federal water issues but basic principles carry over) and quickly reading the 2016 rules during the course of the day yesterday.

                Those are my bona fides; what do you have?Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Kinda sucks that the DEA would even have a review process, huh?

                They should just have a process that says “we don’t do reviews because it’s functionally impossible to reschedule anything.”

                Those are my bona fides; what do you have?

                Not much. Wikipedia. Links to the government agencies. Links to interviews with the President in Rolling Stone.

                A link or two to news articles that discuss the DEA review process as if it were something that exists.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                Let me see if I understand:

                You’re arguing that because you didn’t get your way on this one issue no one should ever be able to petition any agency ever to reverse a prior agency action.

                IDGMFU?

                So you lost in the 2016 Rules on the petitions to reschedule. It happens. (As I’ve explained at great length, I think the agency’s conclusion was correct as a matter of law.) Suck it up and go persuade Ryan and McConnell to take up a bill that gives you what you want. Or follow the roadmap laid out in the Rules to get a cannabis strain qualified as a “drug” and get the drug rescheduled.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                You’re arguing that because you didn’t get your way on this one issue no one should ever be able to petition any agency ever to reverse a prior agency action.

                No, that’s not what I’m arguing.

                I’m arguing the system is broken. We don’t have any people on this board willing to argue that Cannabis should be Schedule 1. The only people willing to argue that it should be Schedule 2 are arguing that as a camel’s nose in the tent kinda thing or because of making concessions to reality involving treaty obligations or what have you rather than belief that it “really” belongs on that schedule.

                I’m pretty sure that everybody agrees that it should be regulated like alcohol.

                And we are in agreement with the sitting president on that.

                And we look at the system that is devoted to investigating whether this substance that we all agree (even the president!) should be treated like alcohol…

                And we see a system that says “It’s schedule 1, it needs to stay schedule 1!” and I am saying that the system is fundamentally flawed. Attempts to defend this fundamentally flawed system by appealing to its integrity are inherently laughable.

                Your counter-arguments seem to rely heavily on the system working as designed.

                Or follow the roadmap laid out in the Rules to get a cannabis strain qualified as a “drug” and get the drug rescheduled.

                I’m okay with it staying qualified as an “other substance”.

                We’ve been over this.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                Jaybird:

                The APA reflects policy choices that are critical, in my view, to good government, including public ruling-making, public evidence, public notice and comment periods, and substantial deference given to prior policy choices.

                I will agree that the intersection between the CSA and the APA are producing policy results that appear ridiculous to a significant number of people.

                The solution to the policy failure lies with Congress, not the Executive.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Well, the policy choices that are critical, in your view, to good government are creating something other than good government. The opposite of it, in this particular case.

                This, to me, indicates a fundamental flaw.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Your solutions of “ignore the law” or “Fire everyone until they ignore the law” seem like it would cause problems worse than the original one, especially when there is a simple fix: Have the Legislature step in, who can fix this in a simple bill.

                You might also want to consider that writing laws (or rewriting them) based on edge cases is often a bad idea. In this case, thankfully, Congress could specifically exempt the single edge case without touching the other laws.

                I don’t know why that solution is so aggravating to you, other than the fact they won’t do it right now.

                The President cannot, and Congress won’t. Why you’re wasting your time on the guy who literally cannot, instead of the organization that could do it in an afternoon is beyond me.

                It’s not like anyone here disagrees with you that cannabis is wrongly scheduled. We’re just pointing out you’re screaming at the wrong party to fix it, and your solutions range from “illegal” to “massive abuse of power”.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                My solution was “Have the DEA do its job of rescheduling appropriately”.

                I mean, everybody agrees that Marijuana should be treated like alcohol, right?

                The DEA didn’t do its job.

                Now what?

                Well, starting soon, we get to lean on the Republican Congress and the Republican President.

                Until then, we’re stuck with the fact that it’s the *SITTING* president talking about how he wished he could have done more. In Rolling Stone magazine. Despite the fact that he’s the guy who picked the head of the DEA… which reviewed Cannabis to see if it was scheduled incorrectly (something that everyone agrees that it has been) and it found that it wasn’t.

                And, apparently, I’m the only one among us three that thinks that the DEA did so in such a way that indicts the entire system, rather than merely saying “it’s the Republicans’ fault.”Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Yes, Jaybird. We get that you think the DEA can do whatever they want instantly at the whim of the head.

                We’ve told you differently, but we also get you don’t believe us.

                I’m sorry reality isn’t the way you want, although I’m shocked to see you double and triple down on willing ignorance rather than accept the way things work and either attempt to change them, or work through the alternative channels that DO work that way (Congress).

                But hey, Trump’s gonna be President. There’s possibly something in the air.

                By all means, continue to scream at the heavens that things aren’t the way you want. I’m sure that’ll get things done.

                When you go hoarse, I suggest you consider how a President firing his way through an executive branch until someone is willing to violate procedure, protocol, and law squares with your “high trust, high collaboration” society.

                Because darned if I can square that circle.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                Here, I’ll try to square it for you by quoting Oscar Gordon above:

                Powerful department heads can’t dictate a result, but they sure as hell can encourage one, especially on edge cases like MJ. Certainly there are cases where things squarely fall into a given slot, and there is no wiggle room, but at the same time, lots of things are judgement calls, and that is exactly what department heads are for, to make those calls.

                For instance, if the DEA head went to his/her staff and said, “POTUS wants to investigate the potential for putting MJ on Schedule II, go find me any and all supporting evidence for that decision”, people would go find something. Now that supporting evidence might be very weak, so weak that Francis is right that judicial review would toss it out on it’s ear. But at the same time, if there is a lot of evidence in support of rescheduling, but the DEA chooses not to look very hard for it, or if the DEA has actively prevented such evidence from being created, how likely is a judge going to not take their word for it that scant evidence exists?

                I mean, I’ve been looking for what evidence was used in the most recent decision and my Google Fu is either weak, or the DEA hasn’t released it.

                If you want a quick and dirty way to square rescheduling Marijuana with High Trust/High Collaboration, you merely have to look at the whole thing where *EVERYBODY* knows that MMJ needs to be rescheduled.

                Except the organization in charge of rescheduling it.

                That calls the integrity of the organization into question.

                You’ll start seeing this when we can complain about Trump not doing anything instead of Obama not doing anything.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                He then linked to a source that contradicted that. A pro-legalization source that flatly said Executive action was difficult, time-consuming, and had a lot of legal hoops to jump through — but Congress could pass it tomorrow.

                Keep screaming, reality will surely change to suit you.

                If you want a quick and dirty way to square rescheduling Marijuana with High Trust/High Collaboration, you merely have to look at the whole thing where *EVERYBODY* knows that MMJ needs to be rescheduled.

                Jaybird, I’m talking about the part where you insisted the President should use Nixonian tactics to end-run around the law and long-established procedure to enact what YOU want done.

                I’m afraid I don’t see a lot of trust and collaboration when you’re agitating for massive abuse of power even for an outcome I agree with.

                Which is the whole nut here, Jaybird: You’re talking to people who want the same outcome as you. They’re just saying your tactics are bad, because it can’t work the way you want. We even point out ways it CAN work (like Congress!) but you keep screaming like we’re against it.

                We’re not. We’re just telling you it doesn’t work the way you want it to. We agree on the outcome, so it’s not like we’re lying to you.

                But keep screaming.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                So long as we’ve moved from “impossible” to “difficult, time-consuming, and had a lot of legal hoops to jump through”, we’ve moved to agreement.

                I look forward to you agreeing with me that Trump should do more come January.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                So long as we’ve moved from “impossible” to “difficult, time-consuming, and had a lot of legal hoops to jump through”, we’ve moved to agreement.

                Morat didn’t say it was impossible: he said Congress could do it lickity split. Francis didn’t say it was impossible: he said that the procedural constraints prevent an easy solution. Obama appears to think that allowing states to express the will of the people via legalizing it is the way to go. Lots of ways to go here.

                Your solution appears to be to dismantle existing institutions (we can either work within them or get rid of ’em right?). A sentiment which got us Trump, for better or worse.Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                Who’s talking about dismantling?

                At this point, I’m suggesting that the DEA actually have rescheduled it during one of the two rescheduling reviews it had in the last five years and the fact that it didn’t indicates that the system is fundamentally flawed.

                I am being told that the DEA could not have rescheduled it in either of these two rescheduling reviews even though everybody agrees it should be treated like alcohol *INCLUDING* the sitting president.

                I am not arguing that Congress could not have done something.

                I am, however, arguing that the sitting president could have.

                You know, the one who said that it should be treated like alcohol in a recent interview?Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                Who’s talking about dismantling?

                You, from only a few moments ago: I’m the only one among us three that thinks that the DEA did so in such a way that indicts the entire system,Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                It can certainly be changed without being dismantled.

                Though if we reach the point where it seems like the two choices are “it’s perfect and working the way it was perfectly designed” and “get rid of it”, I would pick “get rid of it”.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                In my view it’s much closer to WAI than Gone Rogue.

                So my view of your view is that you think we should burn it all down. On balance.

                Trump’s your man. 🙂Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                It seems a lot more likely that he’ll appoint someone who makes Michele Leonhart look like Timothy Leary.

                The good news is that I’m told that that doesn’t matter because, hey, the DEA head is an automaton.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                I didn’t know you were such a big fan of the unitary executive, JB.

                More seriously, I understand that pot related policy is a big issue for you. But apparently other people don’t share your crystal clear, unambiguous views on this topic.

                Whether that difference amounts to a personal failing on their parts is what we’re discussing.Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                Everybody agrees with me on this pot-related policy.

                It ought to be regulated like booze. Nobody disagrees with me on that.

                The only disagreement is whether the DEA should have rescheduled it from Schedule 1 to Schedule 2 in one of the two rescheduling reviews it’s had in the last five years.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                Nobody disagrees with me on that.

                I think the issue nobody disagrees with you on is that pot should never have been illegalized or designated Schedule I in the first place. All the arguments folks have provided concede that point (or something similar, can’t be sure, lots of folks have commented) and are subsequently based on the world we live in as a reality moving forward.

                Your argument is that since we all agree it shouldn’t have been Schedule I, we should all agree that the Obama is a lying, corrupt, hypocritical something-or-other for not getting it rescheduled, which is where the disagreement lies, seems to me.Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                So the disagreement is on how, now that it’s (wrongfully) on Schedule 1, it needs to be rescheduled via Congress, and not via one of the two rescheduling reviews that happened in the last two years.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                WHen you phrase it like that, I don’t know what the disagreement is.

                You seem to think that not only Obama but the commenters here are evil incompetent idiots (or something similar :), otherwise there’s no disagreement. Just tempered preferences. Or untempered, as the case may be.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                It’s already been explained to you that neither of those were actually rescheduling reviews, not like you think they are.

                Look, everyone here agrees with you on the preferred outcome. How about you extend us — especially Francis, who actually works with another branch of government doing something similar, so has career experience here — some credit?

                We’re not opposing the outcome. We’re not opposing the process you suggest because it’s hate Jaybird day, or because it’s Obama can do no wrong day.

                We’re just telling you that the process you’ve outlined ranged from “illegal” to “unethical” to “flatly doesn’t work that way” and explained how the process does work (something you’ve rejected because it contained too many pages to read, or because you thought you could fire your way through it, or just flatly refused to believe that’s how it works) and suggested an alternative, much FASTER process (Congress).

                All of which you’ve rejected in favor of Shouting About Obama.

                Which leads me to conclude that you really just want to yell about pot and Obama, and are utterly uninterested in process.

                Congratulations, Trump Voter.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                It’s already been explained to you that neither of those were actually rescheduling reviews, not like you think they are.

                If they were rescheduling reviews like you think they are, they were also more indicative of the DEA treating a substance that everybody agrees should be treated like alcohol in a way that indicates that they are much more interested in finding excuses to not reschedule than to actually investigate this substance that everybody agrees should be treated like alcohol.

                Oh, and I also went to Wikipedia just now and I see that you guys should edit the “Removal from Sched 1” page.

                It says stuff like this:

                The Act provides a process for rescheduling controlled substances by petitioning the Drug Enforcement Administration.

                Also:

                The Controlled Substances Act also provides for a rulemaking process by which the United States Attorney General can reschedule cannabis administratively.

                Whatever prankster put that stuff on there is spreading stuff that disagrees with your takes.

                Hey, I agree that Congress could reschedule it.

                But Congress didn’t just give an interview in Rolling Stone.

                “Congratulations, Trump Voter.”

                I’m trying to imagine a perspective from which this would be a sick burn. The only ones I come up with are ones that still can’t understand why Hillary lost.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                You’ve clearly not read anything anyone has wrote.

                Enjoy the pleasure of your….confidence.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                Hey, agreement! I agree that the CSA is fundamentally flawed! I agree that the intersection between the CSA and the APA have produced a poor result! I agree that the original listing of cannabis should never have occurred! I even agree that APA compliance can be teeth-grittingly aggravating!

                But from the moment we started discussing this issue, your complaint was with the CSA and your solution was to have an executive agency violate both the CSA and the APA.

                No federal judge would ever agree that those two wrongs make a right.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                I merely believe that the DEA rescheduling MMJ would not have violated both the CSA and the APA.

                Indeed, I think that there was enough wiggle room to get it to Schedule II (even if Schedule V was never on the table).Report

              • Avatar Oscar Gordon in reply to Francis
                Ignored
                says:

                Strikes me that there is a missed opportunity here. Assuming @francis is correct that the major hurdle is that pot is too vague of a definition to move wholesale, then what should have been done was to just move a specific strain to S2. Particularly, the strain that is already fully defined and is the one that UMiss grows for the tiny handful of places with approval to do research. Move that strain to schedule II and open it up for wider range research (without all the hoops for playing with schedule I).

                If wider medical research determines that a different strain would have greater benefit, then that can be petitioned for.

                I mean, if specifics is what is important here, then be specific.Report

              • Avatar Jaybird in reply to Oscar Gordon
                Ignored
                says:

                Perhaps this would be a good thing to go for with a third attempt at rescheduling through the DEA.

                Get the nose of the camel in there.

                As it is, it looks like with 25 states where they are, we’re poised for that to become… oh… 28 by 2018 and somewhere between 30 and 33 by 2020.

                Until inauguration day, however, I’m still seeing this as something that Obama could have done.

                After inauguration day? I’ll start yelling about Trump’s freaking regressive marijuana policy.

                The majority of recreational states *DID* vote against him, after all. What better way to retaliate than kicking down doors of recreational shoppes?Report

              • Avatar Francis in reply to Oscar Gordon
                Ignored
                says:

                There are plenty of DAs, cops and other drug warriors out there who would consider any step back on MJ to be a disaster. How do you think that Obama seeking an appropriation for the purpose of putting a particular strain of MJ on Schedule II would have been received?

                I think he was wrong not to make the effort, but maybe he did behind closed doors and was told that he wouldn’t ever have the votes.Report

              • Avatar Oscar Gordon in reply to Francis
                Ignored
                says:

                Which I said before.

                My whole point is that from a pure rulemaking standpoint, the DEA has had, during Obama’s tenure, 2 opportunities to reschedule the drug. From everything I’ve read from the scientific side of the issue, Pot should at the very least be schedule 2, possibly schedule 3. There is plenty of evidence to support this out there. A president who was serious about getting it rescheduled could have directed his department heads to gather the necessary evidence to support the change such that it would survive judicial review. This isn’t a case of fiat rulemaking, or making things up, or trying to pull a squeaker past a judge.

                For whatever reason, Obama was not sufficiently motivated to push it through. Now that he is a lame duck, he has become re-motivated?

                Like I said to @morat20 (who I agree with regarding the various political history of pot), the insistence of the DEA/FDA/HHS to keep pot on schedule 1 is something I find very unsettling, and I want to know what the real reasons are.Report

              • Avatar Gaelen in reply to Oscar Gordon
                Ignored
                says:

                I honestly don’t know how much authority Obama had to push it through. I mean the agency is acting in its quasi-legislative capacity rather than its executive one.

                Could Obama push through a certain salary level on the new overtime for managers rule? That seems like a stretch, but again he be able too.

                Either way, he could have done more or made it a priority.

                Ed. On real reasons, I would bet it’s ass covering. There isn’t the rigorous testing other drugs have, so the safest course was to keep it on schedule I and open it up for more testing.Report

              • Avatar Francis in reply to Oscar Gordon
                Ignored
                says:

                “what the real reasons are”

                Inertia. Path dependence. Risk (both political and legal) avoidance. Asshole drug warriors throughout the agencies. Lack of Congressional interest in providing the funds necessary to support the work needed to come up with a Schedule II drug. Lack of Executive interest in pushing Congress. A very complicated regulatory environment.Report

              • Avatar Joe Sal in reply to Oscar Gordon
                Ignored
                says:

                False News Flash:

                This just in:
                The regulation and classification of MJ will be slowed to the point that corporations will create the arbitrary legal conditions of which they will capture the market.

                End of transmission.Report

              • Avatar Morat20 in reply to Joe Sal
                Ignored
                says:

                Also, as noted, this could be fixed most quickly by Congress, which — unlike the President or the head of the DEA — change the laws as they wish.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                I assure you, had John Boehner recently given an interview to Rolling Stone explaining how he wished he could have done more to legalize marijuana but the DEA and Obama just kept making sure that his arms were tied, I’d have been screaming about that too.

                As it is, I’m stuck with Obama doing that sort of thing.Report

              • Avatar Oscar Gordon in reply to Joe Sal
                Ignored
                says:

                @joe-sal

                Wouldn’t surprise me in the least.Report

              • Avatar Francis in reply to Francis
                Ignored
                says:

                Here, for me, is the critical paragraph:

                “The petition defines marijuana as including all Cannabis cultivated strains. Different marijuana samples derived from various cultivated strains may have very different chemical constituents including delta9 -THC and other cannabinoids (Appendino et al., 2011). As a consequence, marijuana products from different strains will have different safety, biological, pharmacological, and toxicological profiles. Thus, all Cannabis strains cannot be considered together because of the varying chemical constituents between strains.”

                oops. The petitioners over-reached by asking for rescheduling all strains. The government’s response was that all strains cannot be considered together because they are different products.

                In hindsight, the better course of action would have been to request rescheduling of a set of known, isolated strains that each have a consistent set of chemical constituents.Report

              • Avatar Autolukos in reply to Francis
                Ignored
                says:

                Given that the current scheduling is applied to all strains, this appears to be a transparent dodge of the substantive issue at stake.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                “oops. The petitioners over-reached by asking for rescheduling all strains. The government’s response was that all strains cannot be considered together because they are different products.”

                As far as I can tell looking at the back of my little local free weekly pinko rag, new strains are being developed by local botany enthusiasts on a weekly basis.

                And the botanists brag about achieving different ratios of delta9 -THC and other cannabinoids in the ads they use to sell these medicines.

                Shooting themselves in the foot, I guess, is one way to look at it.Report

              • Avatar Joe Sal in reply to Francis
                Ignored
                says:

                The better course of action would have been to never made it illegal in the first place.

                This isn’t me taking a swing at you Francis, just saying much of the entire clusterfish could have been avoided.Report

              • Avatar Morat20 in reply to Joe Sal
                Ignored
                says:

                I don’t think you’ll find much disagreement here. And that’s without going into the history of pot in America, which makes it pretty clear that “science” was not the operative reason to schedule it as it is.Report

              • Avatar Joe Sal in reply to Morat20
                Ignored
                says:

                I agree with ya there brother.Report

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