Michigan medical marijuana seller gets prison: ‘Federal law has not changed,’ judge says

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Jaybird

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

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57 Responses

  1. Avatar Jaybird says:

    This needs to go to the Supreme Court. I am 99% sure that it will, though.

    Prediction: The Supreme Court will find, 8-1, for the Supremacy Clause. (Sotomayor would be the 1.)

    This immediately shuts down shoppes not only in Michigan but EVERYWHERE.

    Which results in… what? The House passing something?
    I have no idea.
    Presidents running on legalizing it?Report

    • Avatar Michael Cain in reply to Jaybird says:

      Medical marijuana is legal to one degree or another in 33 states. That number is likely to increase before the case reaches the SCOTUS. 34 are enough to call a constitutional convention and propose amendments. 38 are enough to ratify amendments. The US Senate finally approved submitting the 17th to the states when almost enough states to call a convention were already doing direct election, the Constitution be damned. No one knows what might come out of a convention.Report

      • Avatar Saul Degraw in reply to Michael Cain says:

        Problem is that no one will call one out of fear of everything else that will be proposed.Report

        • Avatar Jaybird in reply to Saul Degraw says:

          I can easily see State Legislatures getting addicted to that weed $.

          Addicts do desperate things.Report

          • Avatar Aaron David in reply to Jaybird says:

            Editorial: Roll back California pot taxes to save legal market
            High taxes, slow-moving permit process and local government resistance has stifled state’s legalization effort

            https://www.mercurynews.com/2020/01/26/editorial-roll-back-california-pot-taxes-to-save-legal-market/Report

            • Avatar dragonfrog in reply to Aaron David says:

              I wonder, how much of this angst is about unrealistic expectations of how quickly the legal market would take over from the black market. It might be instructive to compare to alcohol legalization – how long did it take after alcohol prohibition for people to go from their usual bootlegger to legal liquor stores? How long until 50%, 75%, 90% of alcohol purchases were through the legal market? Did it differ a lot from state to state?

              We’re seeing similar things in Canada. In fairness this is because different provinces are doing legalized cannabis very differently. Ontario seems to be bound and determined to mess up legalization every way they can. Alberta has 412 cannabis retailers. Ontario, with about 4x the population and 2x the surface area, has 25. If you live in Thunder Bay Ontario (pop 110,000) the closest cannabis store is a 700 km drive to Winnipeg Manitoba; the closest in-province store a 1,000 km drive away in Sudbury.Report

          • Avatar Jaybird in reply to Jaybird says:

            Right on time: The Wall Street Journal knows what’s up.

            It’s one thing for Federal Judges to point out that Federal Law hasn’t changed and marijuana is still illegal Federally.

            It is quite another to choke off a revenue source for pension funds.Report

      • Avatar Jaybird in reply to Michael Cain says:

        It honestly makes me confused. Why is this not an easy win for the House at a period in time when they could use an easy win?

        Send something to the Senate! Talk about how Cocaine Mitch refuses to legalize Marijuana! Dare Trump to not sign it. Tell the people IN MICHIGAN that, hey, The Democrats are working for *YOU*.

        I don’t understand it.Report

        • Avatar Fish in reply to Jaybird says:

          “Cocaine” Mitch? “Quaalude” Mitch, maybe.Report

        • Avatar Chip Daniels in reply to Jaybird says:

          I agree it should be an easy ‘get’ for the Dems.

          On the other hand, would YOU vote for a Democrat if they promised to change the laws? How many other non-Democrats would switch?

          Maybe its one of those issues where it won’t switch any votes, and just adds complications to a race that might already be difficult.Report

          • Avatar Jaybird in reply to Chip Daniels says:

            This happened *IN MICHIGAN*.

            Which, you may recall, squeaked out but the *TINIEST* of Trump victories.

            “How many other non-Democrats would switch?”

            I’d ask you to rephrase your question:

            “How many other persuadables would switch?”

            This not only includes swing voters who vote Bush in this election, Obama in that one, Trump in this other one but also the ones who voted for Obama and then just couldn’t be arsed to show up in 2016.

            Energize the base. Get out the vote. Change minds for those whose minds can be changed.

            “We’re the Democrats. We’re fighting to legalize Medicinal Marijuana for Little Old Ladies who have Glaucoma (and maybe some other people who have other ailments) and we’re fighting *FOR YOU*.”

            There. I just wrote an ad for Michigan that could be played nationally (or, at least, in 33 states).Report

        • Avatar Michael Cain in reply to Jaybird says:

          One of the difficulties is the Single Convention on Narcotic Drugs treaty. Changes to federal law to formally legalize the states’ medical marijuana laws would include multiple violations of the treaty terms. Other countries that have “legalized” drugs — eg, the Netherlands — keep laws against production, sales, possession, etc on the books in order to remain compliant with the treaty, they just don’t enforce them. The Michigan case is the result of a US Attorney who chose to enforce laws ignored by the Attorneys in other medical marijuana states.Report

          • Avatar Jaybird in reply to Michael Cain says:

            Oh, yeah.

            Maybe it’d be easier for one of the players to say “TO HELL WITH INTERNATIONAL TREATIES!” than the other players. And maybe it’d be a poor play, at this particular juncture, to argue “hey, I’d love for people to be helped, but the United States has an obligation to keep to the treaties it signed!”

            Which is probably why one of the two parties hasn’t done anything…

            You’d think it’d be an easy win for the other one, though.Report

        • Avatar gabriel conroy in reply to Jaybird says:

          It’s not clear to me that the Dem’s (and GOP) are as solidly for legalization as your scenario suggests.

          I don’t know the numbers. But even among those who are nominally for legalization, some may simply not prioritize it or want to antagonize those constituents who are strongly opposed. There’s also the possibility that “legalizing” it means different things to different people: full-on legalization; rescheduling it to a lower level; explicitly allowing states to adopt their own policies; creating a federal licensing system.Report

          • Avatar Jaybird in reply to gabriel conroy says:

            Even the question “what is the cheapest and easiest way that we can benefit from this?” (or it’s sister question “what is the cheapest and easiest way that we can avoid detriment from this?’) seems to have a handful of answers that involves passing a law somewhere.

            I don’t know if bumping it to Schedule 3 (or 4 (or 5)) is the best answer, making an explicit 10th Amendment exception to the Controlled Substances Act that explicitly doesn’t apply to anything else, or something else would be the best answer but the status quo that allowed Federal Judges to politely be in denial that this stuff was happening right under their noses was shattered by this particular judge.

            So we gotta do *SOMETHING* and, apparently, denial ain’t on the table anymore.Report

            • Avatar gabriel conroy in reply to Jaybird says:

              I’m not really following you here. But it doesn’t seem to me that the federal judges were the ones to “politely be in denial.” It’s more that the federal prosecutors were. The judges can’t go out and arrest people. All they can do is wait for something to come to them (except in rare cases, like maybe enforcing consent decrees…..something about which I know very little).

              Am I wrong? Have judges been disallowing prosecutions based on state-level legality? Possibly….I don’t really know. If so, though, that’s news to me, not that I’m all that informed.Report

              • Avatar Jaybird in reply to gabriel conroy says:

                I don’t know if “disallowing” is the best word. But, for some reason, this is the first major Federal bust for Medicinal in a state in which Medicinal is legal since…

                Since when?

                Lemme tell ya, Colorado is selling it for recreation and no Feds have even sniffed.

                Amendment 20, remember, passed in Colorado in the year *2000*.

                Almost Famous? Chicken Run? Gladiator? The first X-Men? Little Nicky? O Brother, Where Art Thou? Yeah, that’s the year they legalized Medicinal.

                This feels like somebody is rocking the boat somewhere.Report

              • Avatar gabriel conroy in reply to Jaybird says:

                Again, though: it’s the prosecutors, not the judges, doing it. Maybe someone is rocking the boat. I don’t know about that.

                I seem to remember hearing something about the feds, shortly after Obama took office, going after at least one or two medicinal sellers in Colorado. I don’t know if that’s true or something I’ve made up. And even if it is true, maybe it’s not a “major federal bust.”

                And…amendment 20 was indeed passed in 2000. But it’s not as if dispensaries just sprang up. I understand there were steps that led to the opening of dispensaries. When I left the state in 2003, I don’t believe there were any dispensaries, although I suppose I could be mistaken.Report

              • Avatar gabriel conroy in reply to Jaybird says:

                I don’t know if “disallowing” is the best word.

                I don’t know either. I was referring to whatever it is a judge does when she or he says, “this case can’t go to trial because what’s alleged isn’t a violation of the law.” Whatever the word for that is, I don’t think federal judges have been doing it in federal marijuana prosecutions. That’s because they can’t.

                Again, maybe I’m wrong and they have been doing it. If so, that’s news to me, but since I’m not up on the news, my ignorance wouldn’t be surprising. Maybe there’s some component of federal judicial deference to local norms that would prompt them to “disallow” (or whatever the word is) a federal prosecutor’s effort to enforce federal law that the scotus has already judged within federal competence.Report

        • Avatar LeeEsq in reply to Jaybird says:

          The Democratic House probably has lots of moderates that believe this will be used against them. I’m sure that more than a few Republican House members are still true believers in the War on Drugs.Report

          • Avatar Jaybird in reply to LeeEsq says:

            But keep in mind: This happened in *MICHIGAN*.

            This seems like an opportunity for either party to generate a hell of a lot of goodwill in Michigan in very short order.Report

            • Avatar gabriel conroy in reply to Jaybird says:

              Possibly. I’m hopeful that as more and more states opt to legalize, at least some of them will be swing states like Michigan, or even red states, which could provide what’s needed for legalization, or at least a more “open to what the states prefer” policy.

              That said, we have to balance that hope with the fact (and it probably is a fact) that a significant number of people in Michigan probably disapprove of legal marijuana. Some of them might even be U.S. representatives. (Or not. I don’t have the pulse on Michigan’s congressional delegation.) My sense, in Sangamon, which has just legalized for recreational use, a large number of people, including many Democratic state reps, are ambivalent about legalization. Of course, the Dem-dominated legislature enacted recreational use, but it’s not clear to me that the enactment was a full endorsement. I do suspect that they, and perhaps some Republicans here, would resent the feds stepping in to quash the state law and would like some sort of federal-level enabling act. But it’s quite possibly a close shave.

              I do realize that most of your comments here in this thread (and the case you linked to in the OP) are about medicinal, which probably has a lot more approval. And your point is stronger there.Report

      • We’d also have to consider what such an amendment would look like, assuming (for the sake of this comment) that any convention would limit itself to addressing marijuana.

        Would it be an exception to the commerce clause? Would it refer specifically,and therefore limit itself, to “cannabis” (or, perhaps, “intoxicating plants”)? Would it declare, as a negative liberty, freedom from interference in any one adult’s personal and informed consumption of any food or substance (“no person shall be denied by the United States, or by any states, the right to….”)? Would it permit regulations of trade but not outright bans? Would it require the federal executive to defer to state law on certain criminal matters?Report

    • Avatar gabriel conroy in reply to Jaybird says:

      I’m not sure it will go to SCOTUS. I think it would be likely that SCOTUS will deny cert, saying, “we already decided this in Raich v. Gonzales.”Report

      • Avatar Jaybird in reply to gabriel conroy says:

        I dunno. I’m pretty sure that Raich could be interpreted as being limited to “Nope! Still interstate commerce! Wickard, dontchaknow.”

        They’re going to have to re-establish Federal Supremacy over State Law. Good and Hard.Report

        • Avatar gabriel conroy in reply to Jaybird says:

          Isn’t that what Raich did?Report

          • Sorry, I misread your comment. But….I just don’t think scotus cares that much to revisit a very similar case only about 15 years or so later, especially if it’s inclined to decide the same way.

            I don’t think scotus needs to or wants to make an extra stretch when it comes to the supremacy clause. I assume the supremacy clause is understood anyway when it comes to saying a federal law trumps state policy when the former is within the feds’ competence.

            I also don’t see scotus ordering US district attorneys to prosecute. You’re not saying scotus will, but that’s, I guess, one way the scotus might try to go beyond what it did in Raich. (Not that a court usually has much business ordering prosecutors to prosecute. But maybe there are exceptions.)Report

            • Avatar Jaybird in reply to gabriel conroy says:

              I don’t think it’s very similar. For one, Angel Raich sued Ashcroft. She’s the one who kicked off that chain of events. This one here, I presume, was the result of a bust.

              I don’t think scotus needs to or wants to make an extra stretch when it comes to the supremacy clause.

              I would disagree based on nothing more than Marijuana alone. Look at the map of states that have allowed it despite it being Schedule 1!

              I’m not really saying that the SCotUS will order attorneys to prosecute as much as they will reiterate “The Law Is The Law And Federal Law Is Supreme”.

              I appreciate the argument that they shouldn’t *HAVE* to do that but, again, I’ll point to the map of states that have legalized marijuana, medical or recreational, and say that there seem to be a lot of States that seem to have forgotten that, whatever the 10th Amendment means, it doesn’t mean *THAT*.Report

              • Avatar InMD in reply to Jaybird says:

                I think you’re confusing the politics of the subject with the law. The proposition that the feds can criminalize some conduct that a state choses not to isn’t controversial. What we may run into eventually if the feds are too brazen is withdrawal of support and cooperation with federal law enforcement and other initiatives at the state level. Of course that would come at a cost to the state too, as the primary way cooperation is obtained in the first place is bribery with federal resources and money.

                It really is a matter of how long the federal government has the will to keep up the fight alone, all while slowly but surely losing its mandate.Report

              • Avatar Jaybird in reply to InMD says:

                Maybe it wasn’t controversial once… but the arrest of this Medicinal guy appears to be controversial.Report

              • Avatar InMD in reply to Jaybird says:

                Just to clarify, I mean non-controversial as a legal principle. I don’t think this is going to cause federal courts to reverse 100 years or more of precedent.Report

              • Avatar PD Shaw in reply to InMD says:

                And it’s not going to the Supreme Court.Report

              • Avatar InMD in reply to PD Shaw says:

                I never say never but like you I would find it shocking for them to grant cert if petitioned. I guess we will see if they appeal to the 6th Circuit and if so on what basis.Report

              • Avatar Jaybird in reply to InMD says:

                Oh, I’m not saying that the federal courts would reverse *ANYTHING*.

                I’m saying that The States thought they could do this without changing Federal Law and, for a couple of decades, they got away with it.

                And it’s time for The Feds to let the States know who is Supreme. (And the Supreme Court would take it not because they want to overrule this one judge. They’d take it in order to say “Hell. Yes.”)Report

              • Avatar gabriel conroy in reply to Jaybird says:

                My understanding of the Raich case was that Raich was arrested and convicted. It’s listed as “Raich” v. Gonzales/Ashcroft and not “Gonzales/Ashcroft” v. Raich because when the loser appeals a conviction, their name comes first.

                ETA: Well, I just looked at Wikipedia, and it appears I’m wrong. Raich did sue, for injunctive relief. Sorry for not getting it right.Report

      • One of the issues appears to be that the feds singled out this guy because, in the feds’ opinion, he was violating the Michigan medical marijuana laws. As part of the defense, it was established that while he has been charged by the state, in all cases either the charges were dropped or he was acquitted at trial. I suspect that the appeal will be that the federal law is being enforced in an arbitrary and discriminatory fashion.

        Does anyone know the current status of the Rohrabacher–Farr amendment? From 2014, it prohibited the DOJ from spending funds to interfere with the implementation of state medical marijuana laws, but has to be renewed annually as part of the budget process. At least in the 9th Circuit, it has been interpreted in a way that I believe would have stopped the Michigan case from ever coming to trial in federal court.

        It seems like there’s enough new stuff that the SCOTUS needs to sort things out.Report

        • Thanks for updating me on those facts, almost none of which I knew, although I had heard of that amendment at the time it passed.

          It seems to me, a person with zero years of law school, that those facts make the issue justiciable and make the case, eventually, a candidate for scotus review.

          But if the scotus reviews this case, it won’t be the type of thing Jaybird describes. Maybe, politically speaking, it will play out the way he describes and perhaps the legislative calculus will therefore work the way he describes it. So I’ll grant that much.Report

  2. This issue is where I have to face my own contradictions. I strongly support legalization and am tempted to adopt the pro-federalism/pro-subsidiarity arguments to support that position. But at the same time, I support federal programs like ACA, and the individual mandate that came along with it, and one basis for my support is the federal government’s prerogative to legislate broadly.Report

  3. Avatar LeeEsq says:

    The investigations happened long before marijuana was legalized in Michigan. Trevino also appeared to be brazen in his scofflaw behavior. Generally, the feds have been reluctant to go after marijuana businesses and users that sprouted up after state legalization even though they could and might be tempted too.Report

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