Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, January 12, 2015

Federalism issues and tensions with modern MJ reform becoming even harder for Congress and Prez to avoid in 2015

Download (2)This lengthy new Politico piece, headlined "The new clash over cannabis: Rising tensions between states over pot put pressure on Obama to act," spotlights just some of the new challenges facing federal officials and policymakers as marijuana reform continues to heat up in the new year. Here are excerpts:

The Obama administration and many congressional Republicans have been loath to go anywhere near the experiment with marijuana legalization in Colorado and other states. But pressure is mounting on Washington to take a stand on pot, and perhaps soon.

In a lawsuit filed last month with the U.S. Supreme Court, attorneys general of Nebraska and Oklahoma argue that Colorado’s marijuana initiative is spilling over into their neighboring, more conservative states. Marijuana arrests and prosecutions are up over the past year, they say, straining law enforcement budgets as more overtime is paid to handle the uptick in activity. And drugged driving is a growing problem, they contend.

But the neighbor states are also taking aim at a federal government that seems highly reluctant to tackle the issue. And with several more states considering legalizing recreational marijuana, the Justice Department and Congress may be forced to clarify what’s OK or not when it comes to marijuana, experts say....

The issue is emerging as a major test for attorney general nominee Loretta Lynch, who will have to decide whether to embrace the hands-off approach to marijuana in the states that the Justice Department has adopted under Eric Holder — or take more decisive action to regulate it.

Experts and advocates floated a range of options if Congress or DOJ were to act, some more far-reaching or politically feasible than others. Anti-legalization advocates want an about-face from the administration: Enforce the existing federal marijuana ban and crack down on legalization regimes in Colorado and elsewhere. That’s a pipe dream for the current White House but not inconceivable if a Republican is elected president in 2016.

Pro-legalization advocates want Congress or the Obama administration to reclassify marijuana under sentencing laws so that it would carry lesser or no criminal penalties. Marijuana is currently considered a “Schedule I” drug, a category that includes heroin and LSD. Even cocaine is deemed less dangerous than pot under federal law.

Other experts say Congress should pass legislation that would deem marijuana federally legal in states that enact legal cannabis laws, thus removing ambiguity in those states. And still others want the administration to establish a standardized regulatory framework throughout the states, as the federal government does with other “vice industries.”

The urgency is expected to grow as five states are preparing recreational pot initiatives for the 2016 ballot: Arizona, California, Maine, Massachusetts and Nevada. A trio of other states — Missouri, Montana and Florida — are considering similar ballot measures. Currently, recreational pot is legal in Colorado, Washington state, Alaska and Oregon; an initiative approved by Washington, D.C., voters in November is currently being challenged by some Republicans in Congress....

In many regards, Oklahoma and Nebraska’s lawsuit demonstrates a last-resort tactic for states that don’t see a willing partner in the federal government, but want to try to blunt the rising tide of legal marijuana in the U.S. But analysts are far from confident that a gridlocked Congress will summon the will to find common ground on such a divisive issue. Though some Republicans and much of the GOP base oppose legalization and would like to see the federal government step up its enforcement, others say more federal action would run counter to the party’s support of states’ rights....

Congress sent something of a mixed signal on marijuana in the $1.1 trillion spending bill passed last month. Anti-legalization hardliners, led by GOP Rep. Andy Harris of Maryland, earned a potential victory by including language that might invalidate D.C.’s Initiative 71. But the bill also included language to prohibit federal agents from raiding medical marijuana facilities in states where pot is legal, codifying the Obama administration’s de facto policy.

Without action from Congress or further clarification from DOJ, friction between the states will only increase, experts say. “[I]t is a useful reminder that the Constitution recognizes that having states go their own ways is not necessarily an unalloyed good,” said Brannon Denning, a law professor at Samford University. “In some cases, we want there to be a single, national rule governing conduct in all 50 states.”

http://lawprofessors.typepad.com/marijuana_law/2015/01/federalism-issues-and-tensions-with-modern-mj-reform-becoming-even-harder-for-congress-and-prez-to-a.html

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