Thursday, April 28, 2016
"Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle"
The title of this post is the title of this new paper authored by Sam Kamin now available via SSRN. Here is the abstract:
This article compares the appropriateness of prosecutorial non-enforcement policy in the contexts of federal immigration and marijuana laws. I begin by discussing the ways in which the Obama administration has set policy in both areas through the use of memoranda directing prosecutors in the exercise of their discretion. I show that in both of these contexts the administration has turned to the exercise of prosecutorial discretion rather than legislative change to achieve its policy outcomes.
I turn next to the Take Care Clause, the constitutional requirement that the president faithfully execute the laws of the United States. I demonstrate that, although the Supreme Court has painted only the broadest outlines of the clause’s meaning, there are certain core ideas that seem to implicate the core of the doctrine. Finally, I apply the Take Care Clause in the two contexts, finding that in both that the Obama administration has acted within the bounds of its constitutional authority. In neither context has the Obama administration re-written legislation or engaged in the kind of categorical refusal to prosecute that might be constitutionally suspect.
Friday, April 15, 2016
"Marijuana Could Soon Be Rescheduled As A Less Dangerous Drug By The DEA, So Why Aren’t Cannabis Proponents Excited?"
The title of this post is the headline of this astute new International Business Times article, and here are exerpts:
After decades of intransigence on the issue, the Drug Enforcement Administration may finally recommend removing marijuana from the list of the country’s most dangerous drugs. That list was created as part of the Controlled Substances Act (CSA) of 1970, which consolidated all federal drug laws into a single comprehensive measure and defined marijuana as a Schedule I controlled substance, alongside heroin, LSD and other drugs that the government says have no medical value and the highest potential for abuse. That meant marijuana was saddled with the strictest possible restrictions and penalties.
Ever since then, marijuana activists have been fighting to remove cannabis from that category. In 1972, the National Organization for the Reform of Marijuana Laws (NORML) petitioned the DEA to instead place marijuana in Schedule II of the CSA, alongside cocaine, meth and other drugs considered dangerous but with medical potential. Twenty-two years and multiple courtroom battles later, the DEA had a final decision: Marijuana would remain a Schedule I substance.
The DEA has rejected two other marijuana rescheduling petitions since then, but now there’s a glimmer of hope among activists that change could finally be in the works. As first reported last week by the Huffington Post, in a recent letter to a group of Democratic senators, the DEA referenced a 2011 petition to reschedule cannabis to Schedule II, noting, “DEA understands the widespread interest in the prompt resolution to these petitions and hopes to release its determination in the first half of 2016.” While there’s a good chance this determination will be no different than in the past, the country’s rapidly shifting cannabis landscape — with 23 states plus Washington, D.C., having legalized medical marijuana (and Pennsylvania poised to do so) — makes some people think the DEA could be ready to concede that cannabis has medicinal value.
But instead of being cause for celebration, the news has met with largely subdued reaction from marijuana activists and business owners. “Symbolically, one could say that would be a victory because you’d have for the first time the federal government acknowledging that cannabis does in fact have some therapeutic utility,” said NORML deputy director Paul Armentano. “But that by and large would be the extent of it. By moving marijuana from Schedule I to II, the federal government would still be putting forward the intellectual dishonesty that cannabis has a high potential for abuse and needs to be regulated accordingly.”
Such responses suggest it’s not just the DEA that’s shifting its position on federal marijuana laws. Marijuana proponents’ stance on federal cannabis rules are evolving, too. As the movement racks up one legal victory after another with little federal acknowledgement, there’s a growing belief that the cannabis crusade doesn’t have to settle for marijuana's move to Schedule II, for which it has long lobbied. Some even worry that such a rescheduling could in fact limit or derail a thriving industry.
A handful of drugs have been rescheduled like this before. Marinol, a synthetic version of marijuana’s psychoactive components, was moved from Schedule I to Schedule II, and then to Schedule III in the 1980s and '90s. But rescheduling is rare. According to John Hudak, deputy director of the Brookings Institution’s Center for Effective Public Management, the DEA has rescheduled substances 39 times since the CSA was ratified 46 years ago, and only five of those instances involved moving a drug from Schedule I to II. Many drug policy experts aren’t optimistic that marijuana will soon be the sixth instance of this happening. After all, the DEA bases such decisions on existing marijuana research — research that has long been severely limited thanks in part to restrictions related to marijuana’s Schedule I status. Even if the DEA recommends rescheduling marijuana in the next few months, the change wouldn’t happen overnight; it would instead trigger a lengthy rulemaking process. “Even if the DEA comes out in July and says, ‘We are moving from I to II,’ it would still take about a year for that to happen,” said Hudak.
But if rescheduling does occur, some marijuana activists say there would be major repercussions. By acknowledging marijuana has medical use and placing it in the same category not just as cocaine but also Vicodin and Ritalin, the government would be signaling that times have changed. “This stands to be a legacy-defining move for Obama if his administration makes the right decision here,” said Tom Angell, founder of the cannabis advocacy group Marijuana Majority. “It would send a strong message to states that do not yet have medical marijuana laws on the books and a strong message to governments around the world that the U.S. government is now on board [with marijuana policy reform].”
The move wouldn’t just be symbolic. Moving marijuana to Schedule II would remove some of the logistical hurdles and academic taboos limiting cannabis research. It would also eliminate several of the bureaucratic hassles plaguing marijuana markets around the country because of the drug’s Schedule I status, such as confusion over whether publications with marijuana ads can be sent through the mail.
But as many marijuana supporters point out, shifting cannabis to Schedule II would not solve the biggest problems facing the nascent marijuana industry. Many unique barriers for marijuana research would still remain, such as the fact that all cannabis for such studies has to be obtained, via a lengthy and complicated approval process, from a single marijuana grow at the University of Mississippi that’s administered by the National Institute on Drug Abuse (NIDA). “The big issue is Ole Miss’ marijuana monopoly, and this wouldn’t fix that at all,” said drug-policy expert Mark Kleiman, a professor of public policy at the New York University Marron Institute of Urban Management.
Then there’s the fact that the biggest headaches afflicting marijuana businesses, such as a lack of banking services and sky-high tax rates thanks to IRS section 280E, which prohibits drug dealers from deducting the costs of selling illicit substances, are due to laws that cover drugs in both Schedules I and II of the CSA. “Moving it to Schedule II really doesn’t accomplish a lot, and frankly it is not scientifically supportable,” said Taylor West, deputy director of the National Cannabis Industry Association. “From a business perspective, it is unclear [if] it would have any impact on the banking situation, and it is specifically clear it would not have any impact on the 280E situation.”
Some marijuana advocates go further, worrying moving marijuana to Schedule II could actually make things worse. Could rescheduling open the door to Big Pharma moving in and taking over the industry? Or could it force all marijuana to be sold by prescription in pharmacies, doing away with the dispensary and recreational marijuana shop markets spreading across the country? “I think a risk that this creates is that it enables DEA to become more directly involved in the control of the current medical cannabis industry,” said Eric Sterling, executive director of the Criminal Justice Policy Foundation. “And that many of the features of the current medical cannabis industry that the public appreciates and values could be lost or destroyed. The DEA would be able to write regulations of the production and processing and distribution of medical cannabis, and they could be quite onerous.”
Others believe such fears are unfounded. “I think if Big Pharma really wanted marijuana to be a huge part of its product line, you would have seen it push the government long ago to consider rescheduling,” said Hudak at the Brookings Institution. Hudak also doesn’t expect to see the federal government dismantling the current marijuana industry: “The state systems are so large, economically and in terms of the people who are served, and they have become entrenched. And frankly, it would be a tremendous enforcement action by the U.S. government to shut them all down, and it would likely be beyond the enforcement resources of the U.S. government right now.”
April 15, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)
Thursday, April 7, 2016
The title of this post is the headline of this valuable new piece by Jacob Sullum at Reason which provides some needed context (and justified pessimism) in light of some press headlines suggesting DEA may be on the verge of reclassifying marijuana. Here is how the piece starts and ends and its main insights in between (with links from the original):
In a memo it sent to members of Congress on Monday, the Drug Enforcement Administration (DEA) says it hopes to announce by the end of June whether it has decided that marijuana no longer belongs in Schedule I of the Controlled Substances Act (CSA), the law's most restrictive category. The memo, first noted yesterday by Washington Post drug policy blogger Christopher Ingraham, has generated headlines such as "The DEA Will Soon Decide Whether it Will Reschedule Marijuana" and "DEA May Downgrade Marijuana From Schedule 1 Drug." Here are three reasons I think those headlines are misleading:1. The DEA has a history of foot dragging in response to rescheduling petitions. This is the fourth time the DEA has responded to a petition asking it to reclassify marijuana. It rejected the first three petitions from six to 16 years after they were filed. The fourth petition, filed in 2009 by New Mexico medical marijuana activist Bryan Krumm, and the fifth petition, filed in 2011 by Christine Gregoire, then the governor of Washington, and Lincoln Chafee, then the governor of Rhode Island, are still pending....
2. Agreeing to reschedule marijuana would require a major change in how the DEA interprets the CSA. Schedule I is supposedly reserved for drugs with a high abuse potential that have "no currently accepted medical use" and cannot be used safely, even under a doctor's supervision. It is doubtful that marijuana meets any of those criteria, let alone all three. But the DEA has always insisted that marijuana cannot be moved until its medical usefulness has been confirmed by the kind of expensive, large-scale clinical studies that the Food and Drug Administration demands before approving a new medicine. While such studies have been conducted with marijuana's main active ingredient (which is how Marinol, a capsule containing synthetic THC, was approved by the FDA in 1985), they have not been conducted with the whole plant....
3. The Obama administration says marijuana will be reclassified only if Congress decides to do so. "What is and isn't a Schedule I narcotic is a job for Congress," President Obama told CNN's Jake Tapper in 2014. "It's not something by ourselves that we start changing." Last January, White House Press Secretary Josh Earnest reiterated that Obama had no interest in administratively rescheduling marijuana: "There are some in the Democratic Party who have urged the president to take this kind of action. The president's response was, 'If you feel so strongly about it, and you believe there is so much public support for what it is that you're advocating, then why don't you pass legislation about it, and we'll see what happens.'"
Eric Holder, Obama's attorney general until last year — and therefore the official directly charged with deciding how controlled substances should be classified, a task that he, like his predecessors, delegated to the DEA — took the same line. Even when Holder said, 10 months after leaving the Justice Department, that marijuana "ought to be rescheduled," he added that "Congress needs to do that."
Although Gary Johnson is optimistic that the administration will change course this year, I see no reason to think the DEA's answer to the two most recent rescheduling petitions will be any different from its answer to the first three.
Monday, April 4, 2016
Senators Grassley and Feinstein convening hearing on whether DOJ is "Adequately Protecting the Public" from state marijuana reforms
This recent press release from US Senate's Caucus on International Narcotics Control details that this caucus has a hearing scheduled to explore how the federal government is keeping an eye on state-level marijuana reforms. (Exactly what this has to do with international control is unclear, but big-government drug warriors on both sides of the political aisle like Senators Grassley and Feinstein have never really been too keen to worry about limiting government growth in this arena.) Here are the basic details on what is prompting this hearing:
Sen. Chuck Grassley, Chairman of the Judiciary Committee and the Caucus on International Narcotics Control, and Sen. Dianne Feinstein, Co-chairman of the Caucus on International Narcotics Control, will hold a hearing entitled, “Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?”
In August 2013, the Obama Administration decided to effectively suspend enforcement of federal law on marijuana in states that legalized it for recreational use. But to disguise its policy as prosecutorial discretion, the Administration also announced federal priorities that it claimed would guide its enforcement going forward. These priorities include preventing marijuana from being distributed to minors, stopping the diversion of marijuana into states that haven’t legalized it, and preventing adverse public health effects from marijuana use. At the time, the Justice Department warned that if state efforts weren’t enough to protect the public, then the federal government might step up its enforcement or even challenge the state laws themselves. This put the responsibility on the Department of Justice to monitor developments in these states, develop metrics to evaluate the effectiveness of its policy, and change course if developments warranted.
But a report from the Government Accountability Office that Grassley and Feinstein requested found that the Administration doesn’t have a documented plan to monitor the effects of state legalization on any of these priorities. Moreover, according to the report, officials at the Department could not even say how they make use of any information they receive related to these priorities. Grassley and Feinstein are convening this hearing to explore this problem.
What I find most notable and disconcerting about this hearing is that it claims to be exploring whether the big federal government bureaucrats inside the Beltway at DOJ who are very far removed from direct public accountability are "protecting the public" from state reforms in Alaska and Colorado and Oregon and Washington which were enacted directly by the public through voter initiatives.
April 4, 2016 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Wednesday, March 30, 2016
Examining the modern intersection of the drug war and deportations (with a special focus on marijuana)
This week's presentation in my marijuana reform seminar is focused on immigration law and the "war on drugs." My student will be presenting, I believe, some original empirical research; as background reading he suggested this 2014 Huffington Post piece headlined "The Drug War = Mass Deportation: 250,000 Deported for Drug Offenses in Last 6 Years." Here is how this piece gets started (with links from the original):
The drug war has increasingly become a war against migrant communities. It fuels racial profiling, border militarization, violence against immigrants, intrusive government surveillance and, especially, widespread detentions and deportations.
Media and politicians have tried to convince us that everyone who gets deported is a violent criminal, a terrorist or a drug kingpin. But a newly released, first-of-its-kind report shatters that notion, showing instead that the majority (some two-thirds) of those deported last year were guilty of minor, nonviolent offenses — including thousands deported for nothing more than possessing small quantities of drugs, typically marijuana.
The report, an analysis of federal immigration data conducted by the Transactional Records Access Clearinghouse at Syracuse University, details how roughly 40,000 people have been deported for drug law violations every year since 2008. That means that nearly 250,000 — one-quarter of a million — people were deported for nonviolent drug offenses in just the past six years. A nonviolent drug offense was the cause of deportation for more than one in ten (11 percent of) people deported in 2013 for any reason — and nearly one in five (19 percent) of those who were deported because of a criminal conviction.
Much as the drug war drives mass incarceration, it also appears to be a major driver of mass deportation. Indeed, the report reveals that simple marijuana possession was the fourth most common cause of deportation for any crime, and the most common cause of deportation for crimes involving drugs. On average, more than 6,600 people were deported in each of the last two years just for personal marijuana possession, and overall, nearly 20,000 people were deported last year for simple possession of any drug or drug paraphernalia.
By contrast, relatively few of those deported were drug traffickers, let alone violent ones. “Convictions for drug trafficking accounted for only one percent of deportees recorded as convicted of a crime,” the report’s authors note, “while marijuana possession was more than three times that level.”
March 30, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)
This new Washington Times article, headlined "Gary Johnson predicts Obama will reclassify marijuana on way out of office," reports on some interesting comments by one candidate aspiring to be in the Oval Office about what its current occupant will do before he leaves. Here are the details:nbsp;
Former New Mexico Gov. and 2016 Libertarian White House hopeful Gary Johnson says he thinks President Obama is going to remove marijuana from the government’s “Schedule I” list of narcotics considered particularly harmful and addictive on his way out of office.
“It’s going to be just like alcohol,” Mr. Johnson told The Washington Times Tuesday. “I’m going to predict that Obama, when he leaves office, is going to deschedule marijuana as a Class I narcotic. I wish he would have done that to this point, but I think he’s going to do that going out the door. That’s a positive.”...
Democratic presidential front-runner Hillary Clinton, among others, has suggested reclassifying the drug under Schedule or Class II. Those drugs include cocaine, but also certain painkillers like oxycodone that are available with a medical prescription.
Mr. Johnson’s campaign followed up by saying that the former governor would prefer that the president remove marijuana from the controlled substances list entirely, allowing states to legalize and regulate as they and their voters choose. But the campaign said most discussion and a more likely near-term step has centered around reclassifying it to Schedule II, which would remove a barrier to prescribed medical uses, though they said that either move would be a step in the right direction.
Mr. Obama has said that Congress can move on such a reclassification. “What is and isn’t a Schedule I narcotic is a job for Congress,” Mr. Obama said in a 2014 interview with CNN. “It’s not something by ourselves that we start changing … no, there are laws undergirding those determinations.”
Tom Angell, chairman of the advocacy group Marijuana Majority, said the attorney general and the secretary of Health and Human Services can move to get rescheduling done without further legislation under the Controlled Substances Act. “It’s tough to predict what the president will do on this issue before he leaves office, but if he’s willing to uphold his pledge to set policy based on science, and he listens to the majority of Americans who support marijuana reform, he will exercise his administrative authority for rescheduling,” Mr. Angell said.
Mr. Johnson pointed out that there are still some “dry counties” in the country with respect to alcohol and predicted marijuana would eventually be in that same category. “I think every municipality has to realize that all the planes to Denver every single weekend are filled up, and that they’re missing out, and Colorado is absolutely vibrant,” he said. “Is it due to marijuana? I think it’s a contributing factor.”
March 30, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Tuesday, March 29, 2016
Regular readers are accustomed to hearing me sing the praises of the work being done by the The Brookings Institution on the legal, political and social realities surrounding modern marijuana reform. The latest terrific Brookings publication in this arena is this long piece authored by John Hudak and titled "The Medical Marijuana Mess: A prescription for fixing a broken policy." The lengthy piece merits the time to read in full, and here are just a few snippets:
Takoma Wellness may be less than three years old, and its business an exotic novelty in the District of Columbia, but Rabbi Kahn is part of a long line of healers — some of them religious leaders like himself — who have been treating the sick with cannabis for millennia. During earlier eras, marijuana was much more commonly recommended for medical purposes than it is now. Five thousand years ago the Chinese, for example, were using cannabis as an appetite stimulant, pain reliever, and anesthetic. British physicians used cannabis for a variety of illnesses and disorders, even administering it to Her Majesty Queen Victoria for pain. As recently as the early 20th century, doctors in the United States, too, found medical applications for marijuana, using it as an anti‐convulsive drug, a pain reliever, and an anti‐inflammatory....
Under federal law, there are no conditions that allow a doctor to prescribe marijuana, a pharmacy to dispense it, or a patient to buy or use it. Marijuana is illegal. Period.
The reason for this is that according to federal law — the Controlled Substances Act — marijuana is classified as a “Schedule I” substance. As explained on the DEA’s website, federal law reserves the Schedule I classification for the “most dangerous class of drugs with a high potential for abuse and potentially severe psychological and/or physical dependence” and with “no currently accepted medical use.” In addition to marijuana this category also includes drugs like heroin, LSD, and ecstasy.
The decision about what drugs should appear in each of the five “Schedules,” which range from the most dangerous and addictive to the least, with only Schedule I drugs ranked as having no medical value, was not made by anyone in the medical community, but by Congress. In 1970, Congress passed the Controlled Substances Act — a politically motivated law enacted at a time of national hysteria over drug abuse, and President Richard Nixon signed it into law. With the exception of a few relatively minor changes in the years since, the drug schedules included in the Controlled Substances Act have remained the same, including the Schedule I designation for marijuana.
The fact that marijuana’s therapeutic effects are real — as evidenced by what science says about its effects on the human body, and supported by hundreds, indeed thousands of years of effective treatments in places around the globe — has not sufficed to get it removed from that list. This is unfortunate, because the Schedule I designation has consequences that extend beyond the legal restrictions. It has created negative cultural norms — biases — that permeate much of society. Patients wanting to be treated with marijuana are often embarrassed and scared — even after a doctor has recommended that they use it, and they’ve gotten the approval of state authorities to do so. For some first‐time medical marijuana patients, a trip to the dispensary is not like a stroll to the pharmacy with a prescription for a drug like amphetamines, or oxycodone, or morphine, or compounds that include cocaine, all of them Schedule II drugs; it’s more like a teenager’s trip to the corner store for condoms.
That social stigma likely keeps many sick people from even considering marijuana as an option. For them, there will never be an opportunity for responsible dispensary owners like Rabbi Kahn to have the chance to calm their nerves and show them that purchasing pot is not shameful — and that using it can be helpful.
Monday, March 21, 2016
SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform
Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws. Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado. This is huge news for state marijuana reform efforts, but not really all that surprising. (It would have been bigger news and surprising if the motion was granted.)
Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito. Here is how this dissent stats and ends:
Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....
Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana. See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II). Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Gonzales v. Raich, 545 U.S. 1, 12 (2005). Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana. See Colo. Const., Art. XVIII, §16. Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015). Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a). And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).
In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado. The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws. See Complaint ¶¶54–65. They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana. Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16. The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.
The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a). The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.
Cross-posted at Marijuana Law, Policy & Reform.
March 21, 2016 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Friday, March 18, 2016
"One Toke Too Far: The Demise of the Dormant Commerce Clause's Extraterritoriality Doctrine Threatens the Marijuana-Legalization Experiment"
The title of this post is the title of this notable new and timely piece of legal scholarship authored by Chad DeVeaux now available via SSRN. Here is the abstract:
This Article argues that the pending feuds between neighboring states over marijuana decriminalization demonstrate the need for a strict doctrine limiting a state’s regulatory authority to its own borders. Precedent recognizes that the dormant Commerce Clause (DCC) “precludes the application of a state statute to commerce that takes place wholly outside the State’s borders, whether or not the commerce has effects within the state.” This prohibition protects “the autonomy of the individual States within their respective spheres” by dictating that “[n]o state has the authority to tell other polities what laws they must enact or how affairs must be conducted.” But this principle was called into doubt last summer by the Tenth Circuit, which concluded that this “most dormant doctrine in [DCC] jurisprudence” had withered and died from nonuse.
The Tenth Circuit’s conclusion, which approved Colorado’s purported direct regulation of coal-fired power generation in Nebraska, ironically coincided Nebraska’s (and Oklahoma’s) attempt to enjoin Colorado’s pot-friendly laws. Nebraska contends that Colorado’s commercial pot market allows marijuana to “flow . . . into [Nebraska], undermining [its] own marijuana ban, draining [its] treasur[y], and placing stress on [its] criminal justice system.” While Colorado celebrated its new-found power to impose its legislative judgments on Nebraskans, the festivities might be short lived. Colorado failed to recognize the impact the extraterritorial doctrine’s apparent demise will have on its own marijuana-legalization experiment. If Colorado is empowered to regulate coal burning in Nebraska because of its effects in Colorado, what prevents Nebraska from projecting its own laws across the border to regulate Colorado marijuana transactions that affect a substantial number of Nebraskans?
Monday, March 7, 2016
As I mentioned in this prior post, the students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform are now starting to assemble readings on particular topics in preparation for an in-class presentation/discussion. This week, one of my students is taking a deep dive into Vermont Bill 241, the bill that sets out a framework for "personal possession and cultivation of cannabis and the regulation of commercial cannabis establishments." I have uploaded the full 40+ page text of Vermont Bill 241 below, and I thought it interest and notable that the bill begins this way:
The General Assembly finds that Vermont lawmakers recognize legitimate federal concerns about cannabis reform and seek through this legislation to provide better control of access and distribution of cannabis in a manner that prevents:
(1) distribution of cannabis to persons under 21 years of age;
(2) revenue from the sale of cannabis going to criminal enterprises;
(3) diversion of cannabis to states that do not permit possession of cannabis;
(4) State-authorized cannabis activity from being used as a cover or pretext for trafficking of other illegal drugs or activity;
(5) violence and the use of firearms in the cultivation and distribution of cannabis;
(6) drugged driving and the exacerbation of any other adverse public health consequences of cannabis use;
(7) growing of cannabis on public lands and the attendant public safety and environmental dangers posed by cannabis production on public lands; and
(8) possession or use of cannabis on federal property.
Wednesday, February 24, 2016
"Did the Framers of the Constitution really intend for unelected bureaucrats to have the power to allow states to circumvent federal law?"
The question in the title of this post is drawn from an interesting line in the midst of this notable new National Review commentary authored by Doug Peterson, the attorney general of Nebraska. The piece is headlined "Colorado’s Marijuana Regime Is an Affront to Federalism and the Rule of Law," and here are excerpts:
In 1970, the Controlled Substances Act (the CSA) was passed with overwhelming majorities in Congress. Its enactment represented, for the first time, the creation of an integrated, comprehensive national drug policy. For nearly half a century, the CSA has stood as the law of the land, marking a consistent and collective recognition that the inherently interstate problem of drug trafficking can only effectively be addressed on a national scale.
The dismantling of this national legal framework by those charged with upholding it began in October of 2009, when President Obama’s deputy attorney general issued memoranda instructing U.S. attorneys to ostensibly ignore enforcement of marijuana laws. The Justice Department’s deliberate inaction unlocked the door for state-sanctioned facilitation of the production, distribution, and retail sale of this illegal substance on a truly industrial scale.
Colorado has since incentivized the growth of a billion-dollar impairment industry that has proven efficient in producing a ubiquitous variety of marijuana products of a potency level that is globally without parallel.... Whatever may be said of the economic success of Colorado’s impairment industry, it is not a success for the rule of law. Nor has it been anything but harmful and expensive for Colorado’s neighbors, like Nebraska, who continue to interdict illegal marijuana consistent with their own laws and, lest we forget, the CSA.
Colorado’s regulatory scheme, coupled with federal inaction, effectively renders the CSA a nullity when it comes to marijuana. How can Colorado’s state-facilitated billion-dollar marijuana industry not conflict with Congress’s nationwide prohibition on marijuana when it has been shown (by federal drug-trafficking reports) that Colorado marijuana reaches a substantial majority of states? It can’t. How can Colorado’s regulations even be said to implicate only purely intra-state activities when they have almost no protections against sales to non-Colorado buyers? They don’t. Did the Framers of the Constitution really intend for unelected bureaucrats to have the power to allow states to circumvent federal law? No chance.
This is why Nebraska, joined by Oklahoma, is seeking a declaration from the United States Supreme Court that Colorado’s marijuana scheme violates the Constitution. Our lawsuit, brought as an original action given its state-versus-state nature, tests whether individual states can effectively nullify federal law. Resolution is needed in the Supreme Court, particularly since the administration — consistent with its actions in so many other areas ranging from environmental regulation to illegal immigration — has abdicated its obligations under the law.
To be sure, I am a fervent believer in the principles of federalism and recognize the Constitution’s reservation of power to the states. I also believe that passage of the CSA was an appropriate exercise of Congress’s authority under the Constitution’s interstate commerce clause. Ironically the Department of Justice also supported this same exercise of federal authority when it strenuously and successfully argued to the Supreme Court in Gonzales v. Raich in 2005 that the CSA’s prohibition on marijuana was a valid exercise of congressional power. In light of these settled principles, Colorado’s actions must yield to another provision of the Constitution: the supremacy clause....
By bureaucratic memo, this administration has allowed the piecemeal nullification of Congress’s clear intent in enacting the CSA. It is now time for the Court to state “what the law is” regarding marijuana and the mandates given by Congress in the CSA. Should the Court decline to hear our case, Big Marijuana and the states with which it cooperates will take it as a sign that federal drug laws do not matter and that the supremacy clause can be selectively applied. Such signals undermine not only the integrity of the rule of law, but also the sovereignty of states like Nebraska who recognize their obligation to refrain from deliberately obstructing Congress’s goal of protecting America and its children against the myriad societal ills posed by illicit drugs.
Perhaps unsurprisingly, the comments to this piece suggest that many readers of the National Review are not especially convinced by what Attorney General Peterson has to say. Notably, the first stated conviction for the Nation Review listed here includes the assertion that the "growth of government (the dominant social feature of this century) must be fought relentlessly." When it comes to growth of marijuana, however, it seem Nebraska's Attorney General supports the growth of the federal government to relentlessly fight against individuals and states that are disinclined to see marijuana in the same light as the feds.
Though this commentary reveals Peterson to be a fair-weather federalist, it does an effective job at highlighting the arguments being made by Oklahoma and Nebraska concerning why the Supreme Court needs to consider ASAP its challenge to Colorado's marijuana reforms. Especially after Justice Scalia's death and with a big national election now less than eight months away, I think it remains somewhat unlikely that the Justices will be eager to take up this state-on-state dispute now. But, as I have long known about the actions of the Supreme Court, you never really know what the Justices will decide to do.
Some prior related posts:
February 24, 2016 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Friday, February 19, 2016
The title of this post is the headline of this notable new This Week commentary by Bonnie Kristian. Here are excerpts:
The need to reschedule marijuana has been apparent for decades, since the classification system was first implemented by the Nixon administration. In the years that followed, activists tried multiple avenues in pursuit of rescheduling without success. Petitions were ignored; bills died in Congress; and courts took the DEA's side.
But perhaps the most promising route to rescheduling is arguably the place it all started: the executive branch. Though the process isn't simple, it has been done before and, through the office of the attorney general, could be done again.
Already, each of the 2016 Democratic presidential candidates have endorsed rescheduling, and on the Republican side, several candidates have taken federalist positions on pot, including explicit support for rescheduling from Ben Carson.
But why should we have to wait until 2017 or later for a new president to maybe decide to expend precious political capital on a rescheduling effort? This is an issue of real urgency, not only for families like the Schwabs, but also for medical research, which is significantly hampered by the Schedule I classification.
President Obama doesn't see it that way. In fact, just last month, Rep. Steve Cohen (D-Tenn.) asked Obama if he would consider rescheduling marijuana during his final year in office. Obama's answer was "disappointing," Cohen reported. "On marijuana, he gave the same answer as when I asked him seven years ago: 'If you get me a bill, and get it on my desk, I'll probably sign it.'"
This is not particularly surprising given Obama's past dismissal of drug war reform. Despite his willingness to apply his “pen and phone” to other issues in the face of congressional inaction — not to mention the fact that rescheduling would be a legally legitimate application for executive power — when it comes to marijuana policy, Obama is remarkably apathetic. He has stated repeatedly that reform initiatives should come from Congress; that he doesn't see that happening any time soon; and that young people shouldn't really care.
That's a curious position for the erstwhile head of the "Choom Gang" to take. But personal hypocrisy aside, Obama's failure to use his lame duck leeway on rescheduling is a remarkable failure for a president who should know better. It has been plain as day for years that marijuana has no business being a Schedule I drug. It's time for America's president to act on that common knowledge.
February 19, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Friday, February 12, 2016
I had noticed earlier this week that GOP Prez candidate (and seeming front-runner) Donald Trump had a few notable comments about marijuana policy during an interview with Bill O'Reilly. Helpfully, this new High Times piece by Jon Gettman, headlined "Pot Matters: Trump on Marijuana," not only details what Trump recently had to say on this topic, but also explains why his latest comments suggest The Donald is generally supportive of at least some marijuana reform. I recommend the piece in full, and here are excerpts:
Republican Presidential candidate Donald Trump is hedging his position on marijuana legalization, but is “a hundred percent” in favor of medical marijuana. Nonetheless, Trump’s stated position on legalization is evolving, because he has acknowledged that “in some ways” legalization “is good.”
Trump, speaking to Bill O’Reilly on Fox News this week, was asked about his position on marijuana legalization in Colorado. After expressing some concern over the health effects of marijuana, he was pressed by O’Reilly about what he would do to stop it. Trump then confessed that “I would, I would really want to think about that one Bill because in some ways, I think it’s good and in other ways, it’s bad.” But then Trump hastened to point out his unequivocal support for medical marijuana, explaining that “I know people that have serious problems... and... it really, really does help them.”
Trump’s cautious approach to legalization is based on uncertainty, as he sees it, about the impact of legal marijuana use on people’s health. He ignored O’Reilly’s opening claim about “dealers, all the pushers... going to Colorado loading up... on pot... and then zooming around the country selling it.” When asked if that concerned him, Trump responded that “it’s a real problem.” But then Trump changed the subject, explaining that “there’s another problem... the book isn’t written on it yet, but there’s a lot of difficulty in terms of illness and what’s going on with the brain and the mind, and what it’s doing... it’s coming out, probably, over the next year or so.”
Asked then if he would stop it, Trump paused, hesitant to commit himself as a presidential candidate to push back against Colorado’s program. “I do want to see what the medical effects are,” he said. After repeating this twice, Trump then volunteered his complete support for medical marijuana, continuing with his pro medical marijuana comments—in spite of O’Reilly’s claim that “medical marijuana is a ruse.” Faced with Trump’s support for medical marijuana and his personal familiarity with medical cannabis patients, O’Reilly conceded that “I know, and they’re taken care of.”
Aside from his support for medical marijuana, the most interesting comment that Trump made about his position was that “in some ways, I think [legalization] s good.” It will be interesting, over the course of the campaign, to hear Trump elaborate on this comment. In this interview, he laid out why “in other ways it’s bad,” but apparently it’s not bad enough to justify a definitive statement opposing legalization. Why not?...
Trump was originally for legalization in 1990 as the only way to win the War on Drugs but has expressed his reservations about legalization during this campaign. His rivals in the nomination contest have all expressed reluctance to interfere with state-level legalization policies because they believe states have the right to set their own policies. Trump’s comment to O’Reilly that legalization is good in some ways moves beyond tolerating legalization as a state’s right by recognizing the potential public policy benefits of Colorado’s approach.
February 12, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Thursday, February 11, 2016
The title of this post is the headline of this new International Business Times article discussing a notable new political voice making a notable suggestion to the a federal governmental agency. Here are the details:
As the opioid epidemic continues to balloon in the country, U.S. Sen. Elizabeth Warren of Massachusetts has called for more research into whether legal marijuana can curb the prescription painkiller epidemic. In a letter to the Center for Disease Control and Prevention, Warren said opiate abuse is a "national problem and warrants swift and immediate action."
The U.S. continues to be the largest consumers of prescription painkillers in the world, according to the National Institutes on Drug Abuse. Even though Americans make up only 5 percent of the global population, they consume 75 percent of opioid medications in the word. Warren asked the CDC to conduct studies about alternatives to pain relief drugs, such as marijuana.
"I hope that the CDC continues to explore every opportunity and tool available to work with states and other federal agencies on ways to tackle the opioid epidemic and collect information about alternative pain relief options," Warren wrote. "Your agency has produced an enormous amount of scientific and epidemiological data that has helped inform stakeholders on the breadth of this crisis -- however there is still much we do not know."
In the letter, Warren noted her constituents' in Massachusetts own battles with opioid abuse. She said there were almost 1,100 confirmed cases of opioid overdose deaths in 2014, which was a 65 percent increase from 2012. "I continue to hear stories from constituents across Massachusetts affected by this crisis -- parents fighting for their kids, doctors fighting for their patients, and communities fighting for each other."
Medical marijuana remains federally illegal as a schedule 1 controlled substance, but it is available in 23 states and Washington, D.C. for patients with chronic pain. Four states, including Washington and Colorado, have gone on to legalize marijuana entirely. When it comes to providing national guidelines, cannabis legislation's lack of uniformity across state borders poses difficulties for the federal agency. "Fighting this epidemic will take hard work on the part of federal, state and local governments, working together with local law enforcement, medical professionals and members of the community," Warren said, adding she hopes the national agency will "aggressively tackle this issue."
The full letter discussed in this article is available at this link, and on the second page Senator Warren express calls for study of "the use, uptake and effectiveness of medical marijuana as an alternative to opioids for pain treatment in states where it is legal” as well as “the impact of the legalization of medical and recreational marijuana on opioid overdose deaths.”
February 11, 2016 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, February 10, 2016
Did the voters of New Hampshire just significantly help improve the chances of federal marijuana reform?
The question in the title of this post is reflects my gut reaction to the results of yesterday's New Hampshire primary. On the Democratic side, the big winner was Senator Bernie Sanders, who has been the most supportive of federal marijuana reform of any of the major candidates. On the Republican side, the big loser would seem to have been Governor Chris Christie, who has been the most critical of state marijuana reform of any of the major candidates. Put those results together, especially with the reports that Gov Christie is about to drop out of the race, and I think the question in the title of this post merits a resounding YES.
That said, last week the Iowa caucuses deal a campaign death blow to Rand Paul, the candidate who has been the most active in trying actually to reform federal marijuana law. Thus, I suppose I could have reasonably posted last week that the voters of Iowa had diminished the chance of federal marijuana reform. And, perhaps most importantly, there is very little evidence that any of the candidates' position on marijuana law and policy is motivating any sizeable portion of the electorate.
As the campaign turns to South Carolina and Nevada, it will be interesting to see if marijuana law and policy may start to get a little more attention. Nevada voters are going to be considering a state marijuana legalization initiative in 2016, and I think there is a real possibility that at least a few candidates may get asked a few hard questions about federal marijuana laws while in the Silver State.
Monday, February 8, 2016
Oregon Health Authority report calls for "the creation of an independent, free‐standing Oregon Institute for Cannabis"
I was intrigued and pleased to see this notable new press story out of Oregon reporting on this notable new public health task force report titled "Researching the medical and public health properties of cannabis." Here are the basics via the press coverage:
Oregon should fund an independent marijuana institute to support and conduct world-class research into the drug's medical and public health benefits, says a task force that includes state officials, scientists and leading physicians.
Tax dollars generated through recreational marijuana sales would supplement private funding to underwrite the quasi-public Oregon Institute for Cannabis Research. The center would hire research scientists, as well as staff to help academic researchers navigate the complexities of federally sanctioned cannabis research.
The recommendation, included in a report submitted Monday to the Legislature by the task force, calls for Oregon to break new ground by providing a sustained source of state money to support marijuana research. Among the proposals: the institute itself would grow and handle marijuana for research purposes. "This institute will position Oregon as a leader in cannabis research and serve as an international hub for what will soon be a rapidly accelerating scientific field," states the report, prepared by the Oregon Health Authority. "No other single initiative could do as much to strengthen the Oregon cannabis industry and to support the needs of Oregon medical marijuana patients."
The proposal represents the latest effort by states to fill gaps in marijuana research created by the federal prohibition of the drug. The government allows research on cannabis, but the approval process is especially complicated and involves marijuana produced at a government-run facility based at the University of Mississippi. The recommendation came out of a law passed last year by the Legislature that called for the creation of a governor-appointed task force to study ways to support a medical marijuana industry geared toward patients. The report doesn't include estimates for what it would cost to fund the center, but makes clear that financial support from the state would be essential. Other states have set aside money for research, but not on an ongoing basis.
Sen. Chris Edwards, D-Eugene, the lawmaker behind the provision that created the task force, said paying for the institute with revenue from the state's marijuana tax is a politically viable idea, but said it isn't likely to gain traction during the Legislature's 35-day session, which began last week. Under current law, marijuana tax revenue goes to the common school fund, mental health, alcoholism and drug services, the Oregon State Police, local and the health authority. "One thing I heard consistently is that people want to understand better the health effects and the health and safety issues -- the potential effects of pesticides and also the potential for medical uses of cannabis," he said. "I think there is broad support for those pieces."...
Colorado and Washington, the first states to legalize marijuana for recreational use, also have plans for research. Colorado lawmakers in 2014 approved a one-time $9 million expenditure for marijuana-related studies, including three that will require federal approval, said Ken Gershman, medical marijuana research grant program manager for the Colorado Department of Public Health and Environment. Six involve "observational studies" of people already consuming marijuana. University researchers in Colorado plan to examine whether young adults and adolescents with inflammatory bowel disease benefit from marijuana, and the effect of cannabidiol, a component of the marijuana plant known as CBD, on Parkinson's-related tremors. Other studies will examine the effect of high-CBD oil extracts on epilepsy, as well as the drug's impact on sleep and post-traumatic stress disorder.
Washington, which offers a marijuana research license, carved out a percentage of its marijuana tax revenue for cannabis research. The law calls for some of that work to look at ways of measuring marijuana intoxication and impairment.
California was the first state to fund research into marijuana's medicinal benefits. In 2000, the state set aside $10 million to fund the Center for Medicinal Cannabis Research at the University of California, San Diego. The center oversaw multiple research projects, most of them looking at marijuana's effect on neuropathic pain. Like Colorado, California's funding was a one-time expenditure.
Dr. J.H. Atkinson, a co-director of the center and a professor of psychiatry at the University of California, San Diego School of Medicine, said the research was "relatively small in scope and duration" but offered a potential model for other states. He said the studies showed a promising connection between cannabis and pain relief. "Without too much chest thumping," he said, "it was the most comprehensive body of research on the potential (of cannabis) ever conducted in this country."...
Research into marijuana is complicated by the drug's longtime status as a Schedule 1 drug. That category of drugs, which includes heroin, is defined as substances that have a "high potential for abuse" and "no currently accepted medical use." Federal research proposals involving involving Schedule 1 drugs must undergo review by the National Institute on Drug Abuse and must use cannabis produced by the University of Mississippi, which holds the lone government contract to grow pot for research purposes. The agency in 2014 said it planned to increase production of marijuana to support more research....
Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, said "ample research" and "an extensive history of human use" provide more than enough evidence to contradict marijuana's status under federal law as a drug that lacks medical benefit. Armentano said he welcomes more research from states like Oregon but is skeptical it will make a difference in the debate about marijuana's Schedule 1 status. "Unfortunately science has never driven marijuana policy," he said. "If it did, the United States would already have a very different policy in place."
February 8, 2016 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Taxation information and issues , Who decides | Permalink | Comments (0)
Monday, February 1, 2016
GAO says DOJ "should document its approach to monitoring" the impact of state marijuana legalization
I just learned of this notable new document authored by the US Government Accountability Office titled "STATE MARIJUANA LEGALIZATION: DOJ Should Document Its Approach to Monitoring the Effects of Legalization." The report was apparently requested by Senators Chuck Grassley (R-IA) and Dianne Feinstein (D-CA), and here is a passage from its "Conclusions" section:
It has been over 2 years since DOJ’s ODAG issued guidance in August 2013 stating that in jurisdictions that have enacted laws legalizing marijuana in some form, if state enforcement efforts are not sufficiently robust to protect against threats to federal enforcement priorities, the federal government may seek to challenge the state regulatory structures themselves, in addition to continuing to bring individual enforcement actions, including criminal prosecutions. ODAG officials reported relying on U.S. Attorneys to monitor the effects of marijuana enforcement priorities through their individual enforcement actions and communication with state agencies about how state legalization may threaten these priorities. ODAG officials also reported using various information sources provided by DOJ components and other federal agencies to monitor the effects of marijuana legalization and the degree to which existing state systems regulating marijuana-related activity protect federal enforcement priorities and public health and safety.
However, ODAG officials have not documented their monitoring process or provided specificity about key aspects of it, including potential limitations of the data they report using and how they will use the data to identify states that are not effectively protecting federal enforcement priorities. Given the growing number of states legalizing marijuana, it is important for DOJ to have a clear plan for how it will be monitoring the effects of state marijuana legalization relative to DOJ marijuana enforcement guidance. Documenting a plan that specifies its monitoring process, such as the various data ODAG is using for monitoring along with their potential limitations, the roles of U.S. Attorneys in the monitoring process, and how ODAG is using all these inputs to monitor the effects of state legalization can provide DOJ with greater assurance that its monitoring activities are occurring as intended. Sharing the plan with DOJ components responsible for providing information to ODAG can help ensure that ODAG has an opportunity to gain institutional knowledge with respect to whether its monitoring plan includes the most appropriate information. This will help place DOJ in the best position to identify state systems that are not effectively protecting federal enforcement priorities, and take steps to challenge those systems if necessary in accordance with its 2013 marijuana enforcement guidance.
February 1, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Who decides | Permalink | Comments (0)
Sunday, January 31, 2016
This Washington Post WonkBlog entry, headlined "Obama says marijuana reform is not on his agenda for 2016," reinforces my long-standing belief that Prez Barack Obama remains disinclined to use any of this limited political capital to try to advance a marijuana reform agenda. Here are the particulars:
Marijuana advocates hoping for a substantial shift in federal marijuana policy in the last year of the Obama administration are likely to be disappointed. At a briefing Friday, White House press secretary John Earnest said any progress on marijuana reform would need to come through Congress. President Obama had signaled his position a day earlier at the House Democratic retreat in Baltimore, saying marijuana reform is not on his list of end-of-term priorities, according to Rep. Steve Cohen (D-Tenn.).
Cohen said he asked the president whether he wanted to "reschedule" marijuana. The federal government considers marijuana a Schedule 1 controlled substance, "the most dangerous class of drugs with a high potential for abuse and potentially severe psychological and/or physical dependence." Many lawmakers want to see it moved to Schedule 2, which acknowledges the plant's medical potential. Democratic presidential candidate Bernie Sanders wants to remove marijuana from the federal list of controlled substances altogether.
But Obama's answer on the rescheduling was "disappointing," Cohen said in an interview. "On marijuana, he gave the same answer as when I asked him seven years ago: 'If you get me a bill, and get it on my desk, I'll probably sign it,' " Cohen said (emphasis his).
At the briefing, Earnest clarified further: "There are some in the Democratic Party who have urged the president to take this kind of action. The president's response was, 'If you feel so strongly about it, and you believe there is so much public support for what it is that you're advocating, then why don't you pass legislation about it and we'll see what happens.' "...
The DEA is reviewing another petition to reschedule pot, but given the history, most observers are skeptical that anything will change this time around. "I don't think they're doing anything," Cohen said. "They've slow-walked it for all these years." He'd like to see the White House be more vocal about the process. "The president could just tell them to get it done," he said.
The latest public opinion polls show broad support not just for marijuana reform, but also outright legalization: Fifty-eight percent of Americans want to see marijuana use fully legalized, according to the latest Gallup polling on the issue. And a 2015 CBS news poll found that 84 percent of Americans support legalizing marijuana for medical use.
Moving marijuana to Schedule 2 of the Controlled Substances Act is a more modest step than full legalization or legalization for medical purposes. It would simply remove some of the barriers to research on uses of marijuana, barriers that the Brookings Institution recently said were "stifling" medical research.
Among people who study the issue, there is near universal agreement that marijuana doesn't belong in the same category of substances as heroin, as even the DEA has finally acknowledged. The consensus among researchers is that it's a lot less dangerous than alcohol, too. A federal classification that stands in such stark opposition to expert consensus "breeds contempt for the government," Cohen said. But if this week's remarks are any indication, addressing that contempt is not high on the White House priority list for 2016.
Sunday, January 24, 2016
The question in the title of this post is part of the headline of this effective new International Business Times article highlighting some interesting aspects of the the on-going debate over marijuana legalization in Vermont. I recommend the article in full (especially for students in my marijuana reform seminar), and here are a few excerpts:
As one of Vermont’s approximately 2,500 official medical marijuana patients, Robert Gwynn is excited his state lawmakers are considering legalizing cannabis. Born with neurofibromatosis type 1, a tumor disorder that has left him with debilitating nerve pain, limited appetite and ongoing fatigue, the 31-year-old has been part of the state’s medical marijuana program for the past two years. Medical marijuana, he says, has helped him halve his 14-pill-a-day pharmaceutical regimen, which had left him so mentally disconnected from reality he was afraid to drive. But he thinks a recreational market could encourage the sort of competition, proficiency and price constraints lacking in the state’s current system of four nonprofit dispensaries statewide. Once a month, Gwynn drives to a dispensary in Brandon, a four-hour round-trip drive from where he lives in Brattleboro, since he says the medicine quality and patient care at the dispensary 10 minutes from his house are so poor, he won’t shop there.
If Vermont legalizes marijuana, Gwynn figures it will look similar to programs up and running in Colorado, Washington state and Oregon, where for-profit businesses produce and sell marijuana. He hasn’t noticed anyone proposing alternatives. “I haven’t really heard it come up,” he says. “When people talk about it, I don’t think it is something that comes to mind.”
Gwynn isn’t the only one who assumes legalized marijuana in Vermont, which could occur in coming months, will resemble cannabis markets elsewhere. But drug policy experts say the state is perfectly positioned to go in a bold new direction, one that challenges widely held assumptions about the country’s mounting marijuana movement. Among those options could be a state-run system similar to how Vermont controls the sale of hard liquor within its borders. Alternatives like this could limit the public health impacts of a marijuana market while still generating state revenue — that is, if lawmakers are willing to consider them. And if Vermont isn’t willing to deviate from the path set by legalization efforts that came before it, does that mean the only realistic U.S. cannabis model moving forward is a free-market free-for-all?
With recent encouragement from both a former state attorney general and Gov. Peter Shumlin, Vermont lawmakers are actively considering becoming the fifth state (not counting Washington, D.C.) to legalize marijuana, building on a medical marijuana law the state passed in 2004 and a dispensary system it launched in 2011. The state’s Senate Judiciary Committee is in the midst of three weeks of in-depth testimony and statewide public hearings on the issue, with the goal of voting Friday on whether to advance a legalization bill. “I’m impressed,” says Matt Simon, New England political director for the Marijuana Policy Project, who’s based in Vermont. “I’ve been studying this issue for 20 years, and here you have politicians sitting in rooms, asking the right questions and trying to understand it for the first time in my life.”
If such a bill passes in the near future, Vermont would become the first state in New England, much less the entire Northeast, to legalize marijuana. While just 626,000 people live in Vermont, the second least populated state in the country, roughly 2.7 million regular marijuana users live within 200 miles of the state, including those in New York City. That means whatever legalized marijuana system Vermont chooses could have financial and political impacts far beyond its modest borders.
Because Vermont does not have a ballot initiative system like many states, the only way it can legalize marijuana is through the legislative process. And if it does so this legislative session, it will be the first time marijuana ever has been legalized by lawmakers, not voters. According to some experts, this means Vermont has the option of considering legalization models not likely to be floated at the polls. “The initiative process is going to be driven by folks who want something to happen, who want legalization,” says Pat Oglesby, a tax attorney who studies marijuana at the Center for New Revenue in North Carolina. “The legislative process could result in a more moderate, middle-ground approach.”
It’s why last year a Rand Corp. legalization study commissioned by the state for $20,000 (the rest of the study’s $120,000 price tag was covered by the philanthropic foundation Good Ventures) urged lawmakers to consider “that marijuana policy should not be viewed as a binary choice between prohibition and the for-profit commercial model we see in Colorado and Washington.” Instead, the report’s authors, a who’s who of drug policy authorities nationwide, laid out a series of alternatives, including a nonprofit-only system, a supply chain overseen by a public authority similarly to how the Vermont State Housing Authority manages affordable housing initiatives and a market only open to “benefit corporations,” or b-corporations, that have positive social impact. But the report focused special attention on one option in particular: a government-run monopoly model where the state controls marijuana production and distribution.
According to experts, a state-run marijuana system could have several benefits. For starters, government-run cannabis outlets wouldn’t have the same sort of financial incentive to promote excessive marijuana consumption similar to how alcohol companies market to heavy users. Instead, government marijuana outlets could focus on the sort of social protections that are a top priority for Shumlin. “You would like a system where nobody has an incentive to encourage overuse of a drug,” says New York University marijuana policy expert Mark Kleiman. “State-monopoly retailing could be a better option if the state officials involved didn’t have any incentive to encourage problematic drug use and even better if they had a responsibility to discourage it.” Reviews of private versus state-run alcohol systems have found “strong evidence that privatization results in increased per capita alcohol consumption, a well-established proxy for excessive consumption and related harms.”...
But now, as Vermont lawmakers narrow possible legalization, there’s little indication the state will deviate significantly from legalization efforts that came before. One of two legalization bills being considered by the state judiciary committee (it will likely end up voting on a hybrid bill containing elements of both) would provide licensing preferences to the sort of b-corporations detailed in the Rand report. But the bill’s author, Democratic state Sen. David Zuckerman, says the other alternatives proposed in last year's report are likely political nonstarters. “I think the extremes on both ends — straight unfettered capitalism and a government-run monopoly — are off the table,” says Zuckerman, adding, he believes the chances of a legalization bill passing this year “are a little better than 50-50.”
Some observers are disappointed. “It’s kind of surprising,” says Dan Rifle, Marijuana Policy Project’s former federal policy director, who left the organization over concerns industry interests were taking over the marijuana movement. “If there’s any state where this should be happening, it’s Vermont. They commissioned a report, and no one seems to have read it.”
But others say options like a state-controlled system aren’t being considered because they don’t make sense. Government-run programs such as this are prone to bureaucratic bloat, and, as MPP's Simon points out, anyone who’s seen the billboards just over New Hampshire's state lines advertising the Granite State's tax-free alcohol stores knows government-controlled outlets can still promote heavy use. Plus, adds Simon, there’s no indication the legalization models already up and running are broken, so why bother fixing them? “We could spend years discussing hypothetical models, but that would be missing the fact that Vermonters are spending hundreds of millions of dollars in the worst possible marijuana model right now,” he says. “We want to move this from the illicit market, and Colorado and Oregon and Washington have already shown that can be done in a responsible fashion.”...
But likely the biggest reason of all options like a state-run program aren’t getting more attention is that many people worry having state workers sell marijuana would put Vermont on a collision course with the federal government. “If you are thinking about this from a public-health perspective and are still trying to bring in state revenue, the approach that probably makes the most sense is the government monopoly,” says Beau Kilmer, co-director of Rand’s Drug Policy Research Center and co-author of the Vermont report. “However, because of the government prohibition, most states aren’t really talking about this because they don’t want to put their employees at risk of arrest.”...
[B]etween such legal questions and the lack of political will around the issue, it’s easy to understand why a state-run marijuana system and other alternatives aren’t getting more airtime as Vermont moves ever closer to recreational marijuana. Some experts say that’s too bad, since the state might offer one of the last best chances to take a hard look at what, exactly, legalized marijuana has to look like. “It could matter enormously if Vermont does something that nobody else does,” says Kleiman. “But if it doesn’t, and California goes the commercial marijuana route this year, as it probably will, then it might be too late. When Congress gets around to legalizing cannabis, you won’t be able to consider models that aren’t focused on commercial production because the commercial interests involved will dominate the political process.”
I have suggested before that the big Rand report on Vermont's marijuana reform options (released around this time last year and blogged about here and here) is a must-read for any and all persons seriously considering different possible models for marijuana legalization. However, I have long thought the report tended to over-emphasize the potential harms of a free-market approach to legalization, and also under-emphasized the potential harms of a government-run system. In particular, my sense of government-run systems (I am thinking here about schools, prisons and health-care systems) is that they tend to move slowly in response to changing conditions, tend to have relatively high costs for the provision of even limited services, and also tend not to invest effectively in product innovations. Especially in the marijuana space over the next few years, where legal and market realities keep changing, where elevated costs are likely will keep the black-market running, and where market innovation might be especially important as we move from black-to-grey-to-freer markets, I worry about a government-run system of full legalization potentially being the worst of all possible short-term solutions.
That all said, one key point about this debate in Vermont that is highlighted by this article is the reality that blanket marijuana prohibition at the federal level is impeding the opportunity for state labratories to seriously consider all possible experimental approaches to marijuana reform. This is one of the many reasons I am hopeful that before too long Congress will have the good sense to recognize that blanket marijuana prohibition at the federal level is already having a significant and likely harmful impact on sensible state development of sound marijuana policies.
January 24, 2016 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Thursday, January 21, 2016
The title of this post is the title of this notable new article by Donald Kochan available via SSRN. Here is the abstract:
The story behind the move toward marijuana’s legality is a story of disruptive forces to the incumbent legal and physical landscape. It affects incumbent markets, incumbent places, the incumbent regulatory structure, and the legal system in general which must mediate the battles involving the push for relaxation of illegality and adaptation to accepting new marijuana-related land uses, against efforts toward entrenchment, resilience, and resistance to that disruption.
This Article is entirely agnostic on the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. Nonetheless, we must grapple with the fact that many jurisdictions are embracing a type of “legality innovation” regarding marijuana. I define “legality innovation” as that effect which begins with the change in law that leads to the development of the lawful relevance of, lawful business regarding, and legal use for a newly-legal product, the successful deployment of which depends on the relative acceptance of the general public which must provide a venue for its operations along with the relative change in the consuming public’s attitudes as a result of the introduction of legality.
Marijuana-related land uses are and will be controversial. Regulatory responses, neighborhood disputes, permit battles, and opposition coalitions are all predictable both as a matter of logical analysis in light of legal standards but also, very importantly, due to the lessons of history with similarly-situated, precursor land uses like liquor stores, adult entertainment, bars, nightclubs, massage parlors, and the like leading the way. The Article also discusses the role of incumbent interests groups in shaping the new marijuana-related regulatory structure, including revealing Baptist and bootlegger coalitions that exist to oppose relaxation of marijuana laws and thwart land use successes of the marijuana industry in order to maintain their incumbent value or profit position. Finally, the Article engages with the growing literature in the social sciences on place and space, examining how the spaces and places we inhabit and in which we conduct our business and social affairs are necessarily impacted whenever legality innovations like we are seeing with marijuana work to disrupt the incumbent landscape.
January 21, 2016 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)