Tuesday, September 26, 2017
Marijuana advocates continue to develop new and exciting ways to partake in the booming business of marijuana consumption. Loopr, a Denver-based marijuana party bus company, plans to create another "green line" in Massachusetts' transit economy. But instead of a green line focusing on transporting passengers via the subway, Denver's 'Puff Bus' will provide passengers a fun transportation experience largely revolved around marijuana consumption. Alban Murtishi of MassLive.com reports:
Loopr allows patrons to consume various forms of marijuana while riding on a bus through downtown Denver. The bus route stops at restaurants, hotels, nightspots and marijuana dispensaries.
According to the company, the Loopr vehicles, called Puff Buses, offer dazzling multimedia experiences with curated music and light shows.
Riders are allowed to smoke or consume marijuana in the back partition of the bus. The bus comes equipped with several different smoking implements, such as water pipes, vaporizers and hookahs.
The company doesn't sell marijuana, but partners with different dispensaries to get riders discounts.
While at first glance the 'Puff Bus' sounds like a fun experience, the potential legal hurdles will likely hinder its operation. Although party buses involving alcohol consumption are quite common in America, there are many differences concerning marijuana and alcohol, especially pertaining to their legal statuses and effects on third persons.
The obvious concern is how the federal government will react to such a company. Loopr supporters will point to the federal government's lack of enforcing its marijuana ban on Loopr's current business model in Denver, Colorado. Supporters will argue that the states should retain their autonomy and decide for themselves if they want to enact the appropriate legislation to permit such a mobile-marijuana-consumption company.
Opponents of legalization will face a tough battle if they depend on federal enforcement. It has been 5 years since Colorado first legalized marijuana, and the federal government has not shown an intent to fully enforce its ban, instead requesting legalized states to follow certain priorities.
However, a strong argument against Loopr involves public safety. Unlike alcohol, marijuana use has a noted effect on those around it, even if they don't personally consume the drug. Opponents can argue that the bus driver will be affected by the rampant marijuana consumption in a small and enclosed bus, thus impairing the driver and creating an unsafe environment for fellow commuters on the road.
Opponents can bolster this argument by referring to one of the federal government's listed priorities from the 2013 Cole II memo: To prevent drugged driving and exacerbation of other adverse public health consequences.
Ultimately, until the federal government clarifies the national law or decides to enforce the current ban, legalized adult-use states like Massachusetts will issue the final decision on whether to legalize businesses such as Loopr.
Thursday, September 21, 2017
The nation’s top law enforcer continues to speak out against marijuana legalization. In Tom Angell’s September 20 article for Forbes, Sessions is quoted as saying:
“It doesn’t strike me that the country would be better if it’s being sold on every street corner. We do know that legalization results in greater use.”
But his opinion may be the result of misinformation. Sessions must not have read Angell’s September 14 article titled Study: Rise in Marijuana use not Caused by Legalization, in which Angell discusses the conclusion of a recently published study in the journal Addiction. The study found that:
“Medical and recreational marijuana policies did not have any significant association with increased marijuana use. Marijuana policy liberalization over the past 20 years has certainly been associated with increased marijuana use; however, policy changes appear to have occurred in response to changing attitudes within states and to have effects on attitudes and behaviors more generally in the U.S.”
So, contrary to Sessions’ assertion, the study shows that an increased use of marijuana has resulted in legalization, rather than that marijuana legalization has resulted in increased use. Which makes perfect sense, being that the United States is a democracy comprised of state governments that are beholden to their citizenry.
The federal government may not be able to justify its anti-marijuana position for much longer. But at this point it doesn’t seem like the Attorney General will have much of a hand in effecting change at that level.
--Buds of Steel
Wednesday, September 13, 2017
Rep. Tom Garrett (R-Va) wants Congress to get off its collective derrière and resolve the problem of marijuana legalization by turning it over to the states. Earlier this year he introduced the Ending Federal Marijuana Prohibition Act of 2017 (H.R. 1227), which would remove cannabis (both marijuana and hemp) from the Controlled Substances Act entirely and turn regulation over to the states.
It's basically the same bill that Sen. Bernie Sanders (I-Vt) introduced a couple of years ago. In a story on PJ Media, GOP Lawmaker on U.S. Pot Policy: ‘We’re Completely on Our Asses,’ he has some blunt words about why he favors the approach:
On Monday, Garrett doubled down on the legislation, explaining the reasons he supports state discretion over medical marijuana policy. After he outlined his reasoning to his constituents, Garrett said at the Cato Institute, “I didn’t have anyone vehemently opposed.”
The Ending Federal Marijuana Prohibition Act of 2017 would remove marijuana from the list of federally controlled substances, bringing it in line with alcohol and tobacco standards. Decriminalization would eliminate a justice system that Garrett believes disproportionately disenfranchises the poor and politically weak, would allow medical professionals rather than the federal government to make key decisions for conditions like epilepsy, and would allow states to realize hundreds of millions of dollars in economic revenue annually.
Garrett’s district grows about seven-eighths of all tobacco in Virginia, and his state, Kentucky and Tennessee, he said, could be economic “monsters” in the industry of agricultural hemp due to climate advantages if marijuana were decriminalized.
. . .
“You should be free to do what you so choose to do so long as it’s not an impact on others that’s negative. That’s easy, and that’s who we’re supposed to be as a nation,” he said, adding that the government closest to the people – local government – governs the most efficiently.
Garrett, a former prosecutor, described the Republican Party as “AWOL” when it comes to marijuana policy. At the same time, he said that more dangerous drugs like heroin should be treated differently for their rapid and widespread destruction.
“I am not pro-marijuana. I’m not anti-marijuana,” he said. “I’m pro-Constitution. I’m pro-liberty. I’m pro-government that enforces its laws.”
Monday, September 11, 2017
The ginormous spending bill passed by Congress and signed by President Trump extends the Congressional prohibition on use of Justice Department funds to prosecute state-licensed medical marijuana facilities that are in compliance with state laws. There was some doubt about that earlier this week when the House Rules Committee blocked the Rohrabacher-Blumenauer Amendment from the House version of the spending bill, but it made its way into the final bill anyway.
President Trump, in his signing message, signaled that he wasn't necessarily on board with the amendment, however. The Washington Times reports:
MMr. Trump n his statement also questioned a provision in the law that bars the Justice Department from using funds “to prevent implementation of medical marijuana laws by various States and territories.”
Mr. Trump said, “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.”
That appears to be in line with Attorney General Jeff Sessions’ comments that he opposes the “expanded use” of marijuana. A White House spokeswoman could not be reached for comment.
Michael Collins, deputy director of Drug Policy Alliance, said Mr. Trump “continues to send mixed messages on marijuana.”
“After stating during the campaign that he was ‘100 percent’ in support of medical marijuana, he now issues a signing statement casting doubt on whether his administration will adhere to a congressional rider that stops DOJ from going after medical marijuana programs,” Mr. Collins said. “The uncertainty is deeply disconcerting for patients and providers, and we urge the administration to clarify their intentions immediately.”
Twenty-eight states have some form of medical marijuana, but the drug is illegal under federal law.
The spending bill’s provision on medical marijuana prevents the Justice Department from arresting or prosecuting patients, caregivers and businesses that are acting in compliance with state medical marijuana laws. The measure will only be binding through the end of September.
I'm not sure we should read too much into the statement. Given that the amendment now is the law, it is itself one of those that the President will have to faithfully execute. The real issue is whether Trump's DOJ reads the restriction as narrowly as Obama's DOJ did. He may decide that the way to get Congress off its collective backside to address the legalization question is to follow the previous Administration's approach. After all, as President Grant famously said, "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."
Friday, September 8, 2017
The medical marijuana business in Arkansas, like that in a lot of places, s shrouded in legal uncertainty. And the banking industry, being traditionally risk-averse, apparently isn't prepared to test the waters just yet. From Arkansasonline.com:
The medical marijuana business in Arkansas will not be cash only, as feared by opponents during last year's campaign for the Arkansas Medical Marijuana Amendment.
But banking services for the business will be expensive, secretive and legally dubious, according to representatives of the financial industry.
Right now, medical marijuana banking is tentatively allowed under guidance from federal regulators. According to federal figures, 368 banks and credit unions were serving the industry nationally in March, an increase of 63 from a year prior.
"The fact is that the legalization in Arkansas is not a defense for nor a cover for the legality by the federal laws, and all banks -- whether they're state chartered, nationally chartered or anything else -- are under the federal laws and regulations," said Bill Holmes, president of the Arkansas Bankers Association.
So without banking, the medical marijuana industry in Arkansas may wind up relegated to operating on a cash basis, which poses numerous financial difficulties. In addition, there is a potential crime and safety issue. Holmes went to to say:
"I'm not on a side for or against medical marijuana, but I understand why folks are concerned when you look at the problems that have arisen in some of the other states. It is a cash business at this point. With what we've had in Little Rock, let's be honest, do you want to inflame that and have cars driving around with bags full of $100 bills? I don't think so."
Little Rock, capital of Arkansas, has one of the highest crime rates in America. Cash-heavy businesses are potential targets for crime, which endangers not only the businesses, but the people involved in them as well—cashiers, delivery drivers, security personnel, not to mention the customers themselves (who better a criminal target than someone headed into a business who must be carrying cash or leaving with marijuana?).
This isn’t to say that droves of violent criminals are suddenly going to be targeting medical marijuana businesses and customers, but it does seem, at least theoretically, that a heightened crime risk exists. And therein lies a paradoxical effect embedded in the current federal drug policy: a criminal law, which among its aims should reduce crime, could actually end up generating more crime.
-- Christopher Daves
Thursday, September 7, 2017
Without legislation, states would lose protection they have enjoyed for the past four years, and Attorney General Jeff Sessions could begin his long-sought crackdown on the rapid expansion of legalized pot.At a Wednesday morning closed-door briefing of House Republicans, California Rep. Dana Rohrabacher (R) implored his GOP colleagues to press House leaders to allow a vote on his amendment.
Fellow Californian Rep. Duncan Hunter told The Hill that after Rohrabacher “talked about it this morning in conference,” GOP leaders said “it splits the conference too much so we’re not going to have a vote on it.”
Rohrabacher had pled with his colleagues in a Tuesday night floor speech to allow the vote.
“The status quo for four years has been the federal government will not interfere because the Department of Justice is not permitted to use its resources to supercede a state that has legalized the medical use of marijuana,” Rohrabacher said.
He said that without his amendment, “we’re changing the status quo in a way that undermines the rights of the states and the people … to make their policy.”
Rohrabacher’s amendment, co-sponsored with Democratic Rep. Earl Blumenauer (Ore.), was included in the previous four Commerce-Justice-Science funding measures, when President Obama was in the White House. It was also included in an omnibus funding bill signed by President Trump earlier this year that expires at the end of the month.
This doesn't mean that the Amendment is dead, however. Its language was previously included in the Senate version of the bill, and given the fairly strong support it's had in the past few years, it may well find itself in the final conference bill despite yesterday's action.
In Washington, D.C., some lawmakers are attempting to dismantle the medical marijuana industry created by individual states. In an op-ed in the Washington Post, Dana Rohrabacher, U.S. House Representative of California's 48th District, is calling on his fellow conservatives to keep his amendment intact and declare themselves as proponents of medical progress, according to an Op-Ed in the Washington Post:
Surprisingly, given the Obama administration’s generally liberal approach to marijuana, its Justice Department tried to interpret the amendment in such a convoluted way as to allow counterproductive raids on marijuana dispensaries. The courts — most recently the U.S. Court of Appeals for the 9th Circuit — repeatedly ruled that our amendment meant exactly what it said.
Unfortunately, my longtime friend Jeff Sessions, the attorney general, has urged Congress to drop the amendment, now co-sponsored by Rep. Earl Blumenauer (D-Ore.). This, despite President Trump’s belief, made clear in his campaign and as president, that states alone should decide medical marijuana policies.
I should not need to remind our chief law enforcement officer nor my fellow Republicans that our system of federalism, also known as states’ rights, was designed to resolve just such a fractious issue. Our party still bears a blemish for wielding the “states’ rights” cudgel against civil rights. If we bury state autonomy in order to deny patients an alternative to opioids, and ominously federalize our police, our hypocrisy will deserve the American people’s contempt.
More than half the states have liberalized medical marijuana laws, some even decriminalizing recreational use. Some eighty percent of Americans favor legalization of medical marijuana. Only a benighted or mean-spirited mind-set would want to block such progress.
Part of the reason is the failure of too many conservatives to apply “public choice economics” to the war on marijuana. Common sense, as well as public choice theory, holds that the government’s interest is to grow, just as private-sector players seek profit and build market share.
The drug-war apparatus will not give ground without a fight, even if it deprives Americans of medical alternatives and inadvertently creates more dependency on opioids. When its existence depends on asset seizures and other affronts to our Constitution, why should anti-medical-marijuana forces care if they’ve contributed inadvertently to a vast market, both legal and illegal, for opioids?
I invite my colleagues to visit a medical marijuana research facility and see for themselves why their cultural distaste might be misplaced.
Better yet, they might travel to Israel — that political guiding light for religious conservatives — and learn how our closest ally in the Middle East has positioned itself on the cutting edge of cannabis research. The Israeli government recently decriminalized first use, so unworried it is about what marijuana might do to its conscript military.
My colleagues should then return to Washington and keep my amendment intact, declaring themselves firmly on the side of medical progress. Failing that, the government will keep trying to eradicate the burgeoning marijuana business, thereby fueling and enriching drug cartels. Trust me: Hugs from grateful supporters are infinitely better.
Representative Rohrabacher chastises his fellow conservatives for failing to uphold a key political platform: state autonomy. Warning politicians to avoid hypocrisy, the Republican from California urges his fellow House members to personally visit medical marijuana research facilities and Israel before siding with the federal government rather than individual states.
The Congressman makes strong points, focusing on the question of medical marijuana and not touching on the more controversial subject of recreational use. He seems to be making strong appeals to a core conservative position -- the role of the states in a federal system -- while pointing out America's current opioid problem and how legalizing medical marijuana might help alleviate it.
-- Zachary Ford
Sunday, September 3, 2017
A Connecticut act that protects applicants and employees who are prescribed medical marijuana is not preempted by federal law according to a recent federal district court ruling. The opinion is Noffsinger v. SSC Niantic Opeprating Co., LLC, No. 3:16-cv-01938 (JAM) )D. Conn. Aug. 8, 2017). In the opinion, Judge Jeffrey Meyer held that federal law does not preempt the Connecticut Palliative Use of Marijuana Act (PUMA), which prohibits employers from firing or refusing to hire employees who use medical marijuana. Over at the National Law Review, lawyer Sara J. Robertson of Polsinelli PC gives a good rundown of the case.
Plaintiff Katelin Noffsinger was prescribed a daily dose of Marinol (capsulated synthetic marijuana) to treat symptoms arising from post-traumatic stress disorder, which she took only at night. Bride Brook, a nursing home, extended an offer of employment to Noffsinger, contingent upon passage of a drug test. Noffsinger disclosed her Marinol prescription to Bride Brook, and, as anticipated, tested positive for marijuana metabolites. Thereafter, Bride Brook rescinded her job offer. Noffsinger filed a lawsuit against Bride Brook alleging a violation of PUMA’s anti-discrimination provision.
[The court . . . held that PUMA did not create an “actual conflict” with any of the three federal statutes. First, the [Controlled Substances Act] did not preempt PUMA because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. Second, the ADA did not preempt PUMA because, while the ADA allows employers to prohibit the illegal use of drugs in the workplace, PUMA does not authorize individuals to use marijuana while at work, and the ADA does not address use of drugs outside of the workplace. Finally, the FDCA did not preempt PUMA because the FDCA does not regulate employment, but PUMA does.
The Noffsinger decision creates further complications for employers that conduct drug testing for marijuana, particularly in states that have enacted laws that protect medical marijuana patients from adverse employment actions based solely on their use of medical marijuana. While the Noffsinger decision is not binding on other courts, courts in other jurisdictions with similar medical marijuana statutes might follow its lead. Therefore, employers may wish to reevaluate policies that either automatically deny employment to, or require termination of, an employee following a positive drug test resulting from the employee’s use of prescribed medical marijuana.
Saturday, September 2, 2017
Senator Cory Booker of New Jersey wants to remove the federal ban on marijuana partly because he thinks law enforcement unfairly targets members of minority communities for using the drug. But groups that oppose Booker's proposal have launched efforts to correct what they see is an incorrect premise. They argue that in fact there's no difference in minority impacts in states where marijuana is legal. From NJ.com:
Instead, minority youth still are being disproportionately arrested for using marijuana when they're under age, or being stopped for drugged driving, they said.
"We want to highlight the false promise that legalization of marijuana will serve social justice," said Kevin Sabet, president and chief executive of Smart Approaches to Marijuana, an anti-legalization group whose advisers include former Rep. Patrick Kennedy (D-R.I.), a Brigantine resident who sits on the presidential opioid commission chaired by Gov. Chris Christie.
Separately, Colorado Christian University's Centennial Institute launched a online petition drive against legalization.
Monday, June 20, 2016
The White House doesn't have much interest in medical marijuana legalization, but support is now coming from a surprising Congressional source. Rep. Andy Harris (R-Md.), a physician who strongly opposed D.C.'s legalization last year, is now leading efforts to ease restrictions that prohibit research on marijuana's medicinal benefits. From the Baltimore Sun:
Harris, a Johns Hopkins-trained anesthesiologist who hangs a white lab coat in his waiting room on Capitol Hill, has been working for roughly a year to build a bipartisan coalition of lawmakers who want to ease restrictions on marijuana for the purpose of studying its effect on debilitating diseases.
Harris and other lawmakers intend to introduce legislation this week to create a less cumbersome process for marijuana researchers seeking Department of Justice approval to work with the drug.
Among other changes, the measure would require federal regulators to approve or deny research applications within two months.
. . .
“Part of my frustration in the entire debate around legalizing medical marijuana is that there really isn’t good scientific evidence about what it’s good for and what it’s not good for,” Harris, who still practices medicine, told The Baltimore Sun. “We really don’t have good data supporting widespread use.”
That position is uncontroversial — even some proponents of looser marijuana laws have lamented a lack of peer-reviewed research. The American Medical Association calls for “further adequate and well-controlled studies” in the opening lines of its formal policy on medical marijuana.
There is anecdotal evidence that the drug has helped patients who are suffering from seizures, Parkinson’s and other complex conditions. But Harris and others say states are making decisions about which types of disease can be treated with marijuana without a clear sense of the drug’s efficacy.
In that sense, both supporters of expanding the use of medical marijuana and opponents can find reasons to back the legislation. Both sides agree that one of the reasons there is so little data is because it’s been difficult for researchers to get their hands on the drug.
Thursday, January 14, 2016
Jacob Sullum: Legalization Lawsuit Shows Conservative Constitutionalists Have Marijuana-Related Memory Loss. As usual with Mr. Sullum, the whole thing is worth reading. Some highlights:
Last week, two days before Mexican authorities recaptured Joaquín Guzmán Loera, a.k.a. El Chapo, Oklahoma Attorney General Scott Pruitt pointed to another drug lord, this one hiding in plain sight: John Hickenlooper, a.k.a. the governor of Colorado. “The State of Colorado authorizes, oversees, protects, and profits from a sprawling $100-million-per-month marijuana growing, processing, and retailing organization that exported thousands of pounds of marijuana to some 36 States in 2014,” Pruitt writes in a Supreme Court brief joined by Nebraska Attorney General Douglas Peterson. “If this entity were based south of our border, the federal government would prosecute it as a drug cartel.”
Hickenlooper actually was a drug dealer of sorts before he got into politics, having cofounded Wynkoop Brewing Company, a Denver brewpub, in 1988. But he ended up running the drug trafficking organization described in Pruitt’s brief by accident. He was elected governor two years before Colorado voters decided, against his advice, to legalize marijuana. Pruitt and Peterson are trying to overturn that result, claiming that it hurt Oklahoma and Nebraska by encouraging an influx of Colorado cannabis. Their argument shows how readily some conservative Republicans let their anti-pot prejudices override their federalist principles.
This, of course, is true. But it goes both ways. What's also interesting, though, is how many folks who believe the federal government has nearly total power over the states -- e.g., Governor Jerry Brown -- let their pro-pot opinions suddenly turn them into John C. Calhoun states-righters with respect to marijuana. When it comes to guns, for example, President Obama is all for federal control, but when it comes to pot . . . well, not so much. Mr. Sullum continues:
The Commerce Clause has been the most important excuse for expanding the federal government since the New Deal, and Raich stretched it further than ever before. It is precisely the sort of decision that an avowed federalist like Pruitt, who has resisted Obamacare as an unconstitutional extension of federal power, should condemn. Instead he is relying on it to force his policy preferences on a neighboring state.
To be fair to General Pruitt, however, that's what lawyers do. Obamacare is constitutional; it's the law. He's stuck with it. He's simply arguing that if liberals are going to force conservatives to have federal health care, conservatives are going to force liberals to follow the Controlled Substances Act.
Perhaps he even thinks that we'll get a limited Commerce Clause only if liberals find that some of the stuff they like gets taken away. It was U.S. Grant who said, "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."
Thursday, January 7, 2016
A proposed cannabis credit union in Colorado lost another round this week. U.S. District Judge Brooke Jackson threw out a lawsuit by Fourth Corner Credit Union challenging the Federal Reserve's refusal to issue a "routing number" to the FCCU. Without a routing number, FCCU cannot access the federal check-clearing process and can't function as a credit union. The Denver Post has details of the decision.
While I haven't seen the opinion, the ruling was hardly unexpected. As Judge Jackson apparently noted, selling marijuana is a federal crime, handling marijuana deposits and using the banking system for marijuana profits is a separate crime ("money laundering"), and thus the Federal Reserve had no obligation to help further the NCCU's.
The decision leaves cannabis businesses in the banking limbo they've been in since quasi-legal marijuana sales began a decade ago. But until the Obama Justice Department moves to reschedule marijuana, or Congress changes the law, it's hardly likely that the Federal Reserve (or the National Credit Union Administration, which FCCU is also suing) will change the rules to allow illegal businesses to use the banking system.
Wednesday, January 6, 2016
Doug Berman asks that question over at Marijuana Law, Policy & Reform. My answer is the same as his. No. Here's his quick take:
But while 2016 could prove historic for marijuana reform on the state level, I am inclined to predict that this year could well be a huge nothingburger on the federal front. Absent some unexpected developments, I would be shocked if an essentially lame-duck President Obama or his Department of Justice will see any reason to significantly alter its present Cole-memo, leave-the-states-mostly-alone prosecutorial policies. And though there are lots of marijuana reform proposals and bills kicking around Capitol Hill, I have no reason to believe or expect any leaders in either the House of the Senate have any real interest in moving any marijuana bills forward (or even having hearings on the topic).
He's hoping he's "missing something" in that assessment, but I don't believe he is. I don't see anybody at the federal level moving to do anything this year.
The Administration? President Obama has had seven years to start the process of rescheduling cannabis, and has shown absolutely no interest in doing it. Given that he's spending his last year doing a victory lap of world capitals and top golf courses (and spending whatever political capital he has left on making it harder for people other than drug lords and gangbangers to get guns), it's hard to see him suddenly get interested. Attorney General Lynch is an old-line drug warrior whose troops are still busy denying that Rohrabacher-Farr amendment limits them from prosecuting medical marijuana growers. Think she'll suddenly see the light?
Congress? It's an election year, which means that despite lots of promises to various constituent groups, virtually nothing will get done.
The presidential candidates? On the Democratic side, Hillary is an old drug warrior who had eight years as First Lady, eight in the Senate, and four as Secretary of State to do something about it, and has never made the slightest attempt to do anything. Sure, for enough money she'd come out in favor of it, but compared to investment banks and Silicon Valley, the marijuana industry is small potatoes. As for Bernie, he'd probably support it as President, but he doesn't seem capable of even talking about any issue that isn't out of Class Warfare 101.
On the GOP side, many of the candidates are conservative drug warriors who are philosophically opposed to legalization. Of the others, I suspect that they took note of the huge boost that coming out for legalization did not give to Rand Paul. The number of Republic primary voters whose choice will depend on the candidate's position on marijuana is probably somewhere between "almost none" and "zero." And in the general election, issues like immigration, the Islamic State, Obamacare, North Korean hydrogen bombs, and Hillary's record will trump (no pun intended) minor stuff like marijuana. Again, enough campaign cash could change that, but it's hard to see how the industry could come up with enough to make it worthwhile.
So I'm even less optimistic than Doug. Of course, if Rand Paul does win the Republican nomination, and a brokered Democratic convention gives us Rocky de la Fuente, things might change.
One of the legacies of the Obama Administration is likely to be the degree to which Congress gets increasingly excluded from national policy making. The marijuana legalization situation is an obvious example, where a statute overwhelmingly passed by Congress has been seriously undercut by Administration policy makers without any serious attempt to get the law amended.
In a forthcoming paper in the Virginia Law Review, Executive Federalism Comes to America, author Jessica Bulman-Pozen (Columbia Law) uses the Administration’s changes in federal marijuana policy as an example of a broader trend that involves a wide range of fields, including health care, environmental law, and education. According to Bulman-Pozen, presidents today find it more difficult to get Congress to enact legislation that they favor, and thus have an irresistible urge to bypass legislation in favor of executive action in cooperation with like-minded states. "[I]ntead of Congress shaping national policy and state-federal relations," she writes, "state and federal executives craft national policy, looking to state sources of authority." In the field of marijuana, for example:
Without an amendment of federal law, then, executive federalism has transformed national drug policy. States have taken the initiative, by adopting new state laws and establishing novel regulatory apparatuses, but negotiations between state and federal officials over the enforcement of state and federal law have ultimately determined the contours of today’s drug law. Such executive federalism has allowed for differences among the states even in the context of the federal Controlled Substances Act: as a matter of federal as well as state law, marijuana today is effectively legal for recreational purposes in four states, legal for medicinal purposes in nineteen additional states, and illegal in the remaining states.
The author finds some merit in this approach, which she notes reflects the current approach used in the European Union, in which policy is set by negotiation among states rather than by an elected assembly. This has, she notes, the advantages of less transparency and more room to horse trade rather than attempt to reach "grand" solutions in Congress.
I suspect that the appeal of this approach will differ depending on how much one likes the current president's agenda -- President Obama's precedents could be a blueprint for later inhabitants of the White House. Trump or Cruz, anyone?
Monday, January 4, 2016
No, the federal government did not legalize medical marijuana in recent omnibus budget bill. The bill reiterated language from last year's omnibus bill, known as the Rohrabacher-Farr Amendment, which prohibits using federal funds to prevent a state from "implementing" its medical marijuana laws. But while various news sites trumpeted this as effectively ending the federal ban on medical marijuana, Reason's Jacob Sullum, in a piece titled The Federal Ban on Medical Marijuana Was Not Lifted, argues that the ambiguous language in the Amendment isn't stopping the Justice Department from prosecutions.
The problem with the Amendment is its language. The Justice Department interprets it to mean that it cannot use federal funds to prosecute state employees who are involved in medical marijuana licensing, taxation, and regulation -- that is, those who are actually implementing the state program. There seems to be a difference between implementing a law (for example, being a state employee who sets or enforces speed limits) and merely obeying a law (a driver who follows the speed limit). If Congress had wanted to ban individual prosecutions, the most natural way to do so would have been to bar DOJ from prosecuting individuals and businesses who are licensed by state medical marijuana offices and who are in compliance with those regulations. While it's true that the authors of the Amendment hoped it would ban individual prosecutions (and while one federal judge has said it does) the DOJ argument is, from a pure statutory construction perspective, perfectly reasonable.
Sullum concludes that even if the Amendment did bar DOJ from individual prosecutions, its effects are still very limited:
The rider has no impact in the 27 states that do not have medical marijuana laws, and it applies only to the Justice Department, so it has no effect on actions by the IRS or the Treasury Department that make it difficult for medical marijuana suppliers to pay their taxes and obtain banking services.
More fundamentally, the amendment, which has to be renewed every fiscal year, does not change the Controlled Substances Act (CSA), which continues to classify marijuana as a Schedule I substance with no legal uses. Because marijuana is still prohibited by federal law, people who grow and sell it, no matter the purpose and regardless of their status under state law, commit multiple felonies every day. If no one is trying to put them in prison right now, that is only thanks to prosecutorial forbearance that may prove temporary.
Anyone who provides services to marijuana businesses is implicated in their lawbreaking. Last week a Colorado credit union that wants to specialize in serving state-licensed marijuana businesses tried to persuade a federal judge that it is legally entitled to participate in the Federal Reserve's payment system, without which it cannot operate. The judge did not seem inclined to agree, saying, "I would be forcing the reserve bank to give a master account to a credit union that serves illegal businesses." The U.S. Postal Service announced last month that periodicals containing marijuana ads are "nonmailable," citing a CSA provision that makes it a felony to place ads promoting the purchase of illegal drugs. An accounting firm and a bonding company hired by a Colorado marijuana merchant recently paid $70,000 to settle a federal racketeering suit filed against them by a hotel whose owners were upset about plans to open a pot shop near their business.
Problems like these cannot be solved without changing marijuana's status under federal law. The Rohrbacher-Farr amendment does not do that, no matter how many hopeful headlines it generates.
Wednesday, June 10, 2015
. . . is the title of a new piece in the Washington Times. The headline is a little misleading -- marijuana is now and will remain, for some considerable time, illegal everywhere in the U.S., the District of Columbia included.
What the author is referring to -- as the article itself makes clear -- is a spending bill pending in the House of Representatives that would continue prohibiting the D.C. government from enacting a tax-and-regulation system for marijuana. Congress did this in the last spending bill, and the new rider seems to continue the plan:
A House spending bill introduced Wednesday would block the District of Columbia from using any money "to legalize or otherwise reduce penalties" for possession of marijuana — a move that would keep the drug quasi-legal in the city.
Voters approved a ballot initiative in 2014 that legalized possession of up to an ounce of marijuana in the District, however without legislative action by local lawmakers it will remain illegal to buy or sell the drug.
The congressional rider will continue to block city leaders from pursuing legislation to regulate the sale and taxation of marijuana. A similar provision was included in a congressional spending plan adopted in December.
Marijuana policy experts interpreted the fact the rider did not include more restrictive language as a sign Republican leaders were not interested in engaging in a larger fight over marijuana.
"I’m pleasantly surprised that the rider that they did include was not more restrictive," said Dan Riffle, director of Federal Policies at the Marijuana Policy Project. "I fully expected them to include tougher language explicitly naming the law in the language of the rider."
Tom Angell, chairman of the Marijuana Majority, is holding out hope that the rider could be removed from the budget.
"If there’s a floor vote on an amendment to strip this language from the bill, I think we have a really good shot of assembling a bipartisan majority of lawmakers who will stand up for letting D.C. enact its own marijuana policies without interference," Mr. Angell said.
That last prediction may be correct, but I doubt it. Congressional Republicans may not want to stop D.C. residents from growing and smoking a little, but Weed Marts scattered around Capitol Hill isn't something many of them will want to see. Add in the potential for D.C.'s chronically corrupt government to start trading licenses for under-the-table cash, and you've got a recipe for problems.
It's an interesting paradox. In enacting the spending bill, Congressional Republicans aren't thwarting the will of the D.C, voters -- they've made no attempt to overturn what the voters did. They merely seem to be thwarting the D.C. government, which wants to license, control, and profit from the trade.
Monday, June 8, 2015
The Dallas Observer has an article with the scary title, Texas' New Medical Marijuana Law Could Send Doctors to Jail.
The story under the headline doesn't really match the scare, though. The fact is that any physician anywhere in the country who is involved in helping a patient get marijuana -- a Schedule I controlled substance -- could be thrown in jail at any time, regardless of what any state law says. The problem with the new Texas law -- as I wrote in an op-ed in the Dallas Morning News before the bill passed -- is that its wording misses a chance to decrease the risk that physicians will lose their rights to prescribe controlled substances if they prescribe cannabis for patients.
It's extremely unlikely that a Texas physician who complies with the new state law will go to jail. As my colleague Chris Lindsey wrote:
The question as posed is "could it?" and the answer is yes, it could. If the question were "would it?" the answer depends not on the law as it was written, but on prosecutorial discretion. Clearly it is illegal for doctors to prescribe a Schedule 1 substance, as both the federal courts and the DEA have explained in response to the first medical marijuana law passed. For all the several states that have used the term "prescribe," none of them have functioned, so we don't actually know what federal prosecutors would do - likely because doctors are not inclined to take the risk.
The problem is that "very unlikely" isn't "no chance at all," and physicians who have spend their lives building up a substantial practice treating epilepsy may not want to run even the slightest risk of jeopardizing their practices.
On the other hand, my talks with various folks here in Texas suggest that there are, in fact, some physicians who are already planning to start prescribing the low-THC product when the system is up and running. That's good news.
Thursday, April 23, 2015
Rep. Daha Rohrabacher and ten of his colleagues have reintroduced a bill that would prevent the federal government from prosecuting people who are acting in compliance with state marijuana legalization laws. The bill is a response to the Obama Administration's position that its operatives are not, in fact, bound by language passed in last year's appropriations bill and signed by the President, which prohibits use of federal funds to pursue those who are in compliance with state marijuana regulations. From Matt Ferner at HuffPo:
“The American people, through the 35 states that have liberalized laws banning either medical marijuana, marijuana in general, or cannabinoid oils, have made it clear that federal enforcers should stay out of their personal lives," Rohrabacher said in a statement Wednesday. "It’s time for restraint of the federal government’s over-aggressive weed warriors.”
. . .
And while a federal spending bill signed by President Barack Obama in December prohibits the Department of Justice from using funds to interfere in state-legal medical marijuana programs, the DOJ has said that it doesn't believe the congressional measure prohibits them from prosecuting individuals or businesses in violation of federal law.
The House bill introduced by Rohrabacher would go further than those previous measures by amending the Controlled Substances Act so it would make an exception to federal law for states that have developed their own marijuana policies.
Under the Obama administration, the Drug Enforcement Administration and several U.S. attorneys have raided hundreds of marijuana dispensaries and sent people to prison, even though they complied with state laws. According to a 2013 report from advocacy group Americans for Safe Access, the Obama administration has spent nearly $80 million each year targeting medical marijuana.
The federal government has ignored the congressional action, also introduced by Rohrabacher, in ongoing federal asset forfeiture actions against multiple dispensaries in the San Francisco Bay Area. The congressman sent a letter to Holder slamming the DOJ's interpretation of his amendment, calling the department's interpretation "emphatically wrong."
Co-sponsoring the bill, H.R. 1940, are Reps. Justin Amash (R-Mich.), Earl Blumenauer (D-Ore.), Steve Cohen (D-Tenn.) Duncan Hunter (R-Calif.), Tom McClintock (R-Calif.), Thomas Massie (R-Ky.), Jared Polis (D-Colo.), Jan Schakowsky (D-Ill.), Dina Titus (D-Nev.), Mark Pocan (D. Wisc.), and Don Young (R-Alaska).
The bill has been referred to the Committee on the Judiciary (where Rep. Cohen the ranking minority member of the Subcommittee on the Constitution and Civil Justice), and the Committee on Energy and Commerce (where Ms. Schakowsky is ranking minority member of the Subcommittee on Commerce, Manufacturing and Trade).
What's also interesting is the diversity of the sponsors. Mr. Rohrabacher is a former Reagan speechwriter and a strong free-market proponent, while Mr. Amash is the head of the House Liberty Caucus and is usually regarded as a Tea Party favorite. On the other hand, Ms. Schakowsky, Mr. Cohen, and Mr. Pocan are all active in the Congressional Progressive Caucus and are among the House's most liberal members.
That diversity, and the fact that a majority of Congress supported the restrictions that the Administration is now ignoring, means that the bill might have a much better chance now than it did when last introduced in 2013.
It will be interesting to see if President Obama, in light of his recent remarks, will make any effort to put Administration's support behind the bill.
Wednesday, April 15, 2015
The federal judge who held an "unprecedented" hearing on the constitutionality of marijuana's classification on Schedule 1 of the CSA has ruled that there is no constitutional violation. There apparently is not yet a written opinion for us to pore over.
As I've noted before, this isn't unexpected. There are formidable legal and practical hurdles to courts who want to overrule agency determinations, and so long as any evidence supports the government's determination, it's unlikely to be overruled. Still, it was an amazingly good effort by the lawyers and raised a lot of great issues. Sounds like marijuana advocates will take it up to the 9th Circuit Court of Appeals.
NORML's reaction to the ruling seems to me to be dead right:
"We applaud Judge Mueller for having the courage to hear this issue and provide it the careful consideration it deserves,” said Paul Armentano, NORML’s deputy director. “While we are disappointed with this ruling, it changes little. We always felt this had to ultimately be decided by the 9th Circuit and we have an unprecedented record for the court to consider.”
ADD: Reading the vitriolic comments on some web sites about Judge Mueller's decision, it seems necessary to remind people that despite what it sometimes looks like, U.S. judges are not given carte blanche to overturn any laws they personally find unsupported by evidence, or which interfere with notions of "liberty." Her decision is correct as a matter of law. That law can be changed either by the Administration (which has been delegated power by Congress) or by Congress, but it can't be changed by one unelected woman in a black robe in Sacramento.
Tuesday, April 14, 2015
Not surprising, I think, given his general lack of enthusiasm on the topic . . . . Obama Still Taking It Slow on Marijuana. Here's a sample quote:
There’s then the second issue of legalizing marijuana, whether it’s medical marijuana or recreational use. There are two states in the United States that have embarked on an experiment to decriminalize or legalize marijuana — Colorado and Washington State. And we will see how that experiment works its way through the process.
Right now, that is not federal policy, and I do not foresee anytime soon Congress changing the law at a national basis. But I do think that if there are states that show that they are not suddenly a magnet for additional crime, that they have a strong enough public health infrastructure to push against the potential of increased addiction, then it’s conceivable that that will spur on a national debate. But that is going to be some time off.
The striking thing is that in areas like immigration and foreign treaties, the Administration has claimed vast powers to ignore Congress. But on marijuana, where Congress specifically gave power to the executive branch to reschedule marijuana (18 USC § 811), the President suggests he needs to wait for Congress. That's a pretty good indicator that despite the rhetoric he's not really interested in doing anything.