High on my list of Obama’s Un-kept Promises is his inconsistency on medical marijuana policy. When he was entering office, there was a perception that Obama was going to respect the laws of states that have legalized marijuana for medical purposes – currently numbering seventeen, though less at the time – and that he would essentially stand-down Justice Department prosecution of cases related to the issue. Where did this perception come from? Maybe here:
In a March 2008 interview, Obama told the Oregon Mail Tribune that medical marijuana ranked low on his list of priorities.
“I think the basic concept of using medical marijuana for the same purposes and with the same controls as other drugs prescribed by doctors, I think that’s entirely appropriate,” Obama said. “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue.”
Obama said this to the Oregon Daily Mail during his first campaign. However, Obama’s own personal penchant for smoking marijuana has been well-documented, so perhaps he just forgot. Because during his first three years in office, Obama’s Justice Department was responsible for over one hundred medical marijuana busts. In his first term, his wrath on dispensaries has exceeded even that of his predecessor, George W. Bush.
And, as we all undoubtedly know, marijuana has been legalized for recreational use under the state laws of Washington and Colorado (a similar measure was defeated in Oregon) – so the sky should be falling down any day now.
Considering the national popular support marijuana legalization has attained, in the form of a 58% approval rate according to a recent report by Public Policy Polling, and considering the unprecedented amount and methods of regulation being implemented in Colorado – the 70-30 rule being among the most impressive tools to keep out cartels – it seems to me that this would be a perfect time to stand down the Justice Department and let the states implement and uphold their own laws, as have been fairly and legally voted on, and see how what has amounted to a grand experiment in the Laboratories of Democracy plays out. Unfortunately, it seems they may be planning a different course of action:
Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.
Marijuana use in both states continues to be illegal under the federal Controlled Substances Act. One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law.
One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state. The department could then obtain a court ruling that federal law trumps the state one.
A more aggressive option is for the Justice Department to file lawsuits against the states to prevent them from setting up systems to regulate and tax marijuana, as the initiatives contemplated. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be “severed” from those eliminating state prohibitions — or whether the entire initiatives must be struck down.
Another potential avenue would be to cut off federal grants to the states unless their legislatures restored antimarijuana laws, said Gregory Katsas, who led the civil division of the Justice Department during the George W. Bush administration.
None of these options is ideal, as has been admitted by the officials involved. Legalizing marijuana is popular among liberal Democrats, “who just turned out to re-elect [President Obama],” and any harsh action by the administration against these states would create political problems for the president. Plus, we know that Obama personally does not seem to have a problem with pot. So why is he intent on pushing the issue?
In a Rolling Stone interview from April of this year, Obama attempted to walk back the quote he gave to the Oregon Mail Tribune in 2008:
What I specifically said was that we were not going to prioritize prosecutions of persons who are using medical marijuana. I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana – and the reason is, because it’s against federal law. I can’t nullify congressional law. I can’t ask the Justice Department to say, “Ignore completely a federal law that’s on the books.” What I can say is, “Use your prosecutorial discretion and properly prioritize your resources to go after things that are really doing folks damage.” As a consequence, there haven’t been prosecutions of users of marijuana for medical purposes.
There are three issue with this that I can see. One, though individual users of marijuana for medical reasons may not have been arrested, the medical dispensaries were shut down – in record numbers – and if you think that prosecuting the place where you get your medicine is totally different from prosecuting you, you’ve never been direly ill and in pain and without your medicine. To prosecute one is to prosecute the other (an equally fitting term would be “persecute”). The fact that the patients aren’t being charged as criminals is great, but that doesn’t absolve or outweigh the fact that they were not able to get the medicine they needed. Not to mention the fact that the order to “properly prioritize your resources to go after things that are really doing folks damage” doesn’t jell with shutting down pot dispensaries. They’re not damaging anybody. Quite the opposite.
Two, it seems that Obama is trying to stand on principle, saying that the law’s the law, and for once he has stopped sounding so cool and so in-tuned with youth and has started sounding like a Constitutional law professor with a tree branch up his butt. Avoiding the core issue, the principle of the issue, and saying the law’s the law is not a good enough reason. The implementation of laws should at least have some basis in, some relationship to, common sense. And the law he’s referring to, which is the Controlled Substances Act, was never intended to be interpreted this way.
In a 1998 letter, [then-Attorney General Janet Reno] explained that the CSA was not “intended to displace the states as the primary regulators of the medical profession, or to override a state’s determination as to what constitutes legitimate medical practice.”
Janet Reno explained this same issue in a letter to Congress regarding physician-assisted suicide. Senator John Ashcroft and several others wanted her to use the Controlled Substances Act to fight against Oregon’s Death With Dignity Act, but she refused. They were using the same law Obama is to preclude a state action similar to Colorado’s in its legal ramifications, and Reno’s decision can be applied here just as aptly.
And three, where Obama says, “I can’t nullify congressional law. I can’t ask the Justice Department to say, ‘Ignore completely a federal law that’s on the books,'” I say, Yes, he can, and he already has. In fact, his first term has been a fairly groundbreaking use of executive power to circumvent the law and lawmakers, and unilaterally enact policy. In early 2011, he announced emphatically that his administration would stop defending the Defense of Marriage Act (DOMA) in court. A few months later, he “effectively implemented greenhouse-gas regulations stalled in the Senate by allowing the EPA to interpret existing law more broadly.” That fall, he relieved states of the burdensome regulations of Bush’s No Child Left Behind policy by issuing the states waivers, and also implemented his administration’s own education policy without it being passed by Congress. This was quickly followed by waivers implementing similar actions for welfare. Early this year, Obama “bypassed the usual confirmation process to make four recess appointments even though the Senate had been holding pro forma sessions to block them.” And most recently, in June of this year, the president announced from the Rose Garden that he would be “singlehandedly granting relief to an entire category of young immigrants,” according to a Newsweek article, by implementing the DREAM act, also without Congressional approval.
All of these instances are part of an attempt by Obama to make progress on his issues despite – and, more accurately, because of – having to work with the most obstructionist Congress in history. Each one has been controversial, particularly, of course, with Republicans. And I have to admit, using executive power to unilaterally implement policies is an ethically – not to mention legally – dicey area, but in each one of these instances he has been spot-on and entirely appropriate, in my opinion. The instinct to circumvent the Congress he had in his first term, one he spent his first two-and-a-half years in office trying to negotiate and compromise with on a variety of issues, only to end up being blocked at every turn, I think is entirely appropriate. And because we know how comfortable he already is with basically ignoring existing law, his argument that the law’s the law in reference to marijuana policy rings very hollow. If he’s making unilateral moves anyway, why not stand down the Justice Department – as he did for DOMA – and let reason and logic have their day, maybe ease up on California, and let the experiment in Washington and particularly Colorado continue unimpeded. If the rational and moral arguments aren’t enough, then popular opinion should be. Aside from the 58% of the public who support marijuana legalization, legislators from both major parties, legislators from a significant third party, 73 specific police officers and judges, and plenty of others I’ve missed – not to mention Gary Johnson, the former New Mexico governor who ran almost entirely on marijuana legalization – have all urged the president to not interfere with the two new state laws.
(Incidentally, two of the Congressmen most adamantly in favor of medical marijuana legalization, Representatives Jared Polis and Steve Cohen, had the opportunity to question DEA chief Michele Leonhart about the health risks of marijuana during a House Judiciary Subcommittee hearing. The resulting spectacle is truly unbelievable. I expected the DEA chief to be somewhat entrenched in her beliefs about drugs. I did not expect her to be a moron.)
If President Obama and the Democrats don’t get behind this issue, perhaps the opposite could happen. As has been mentioned here and pretty much everywhere across the political commentary universe, the conservative movement should be trying to find a way to reinvent itself and reestablish its big-tent, freedom-loving image. Perhaps one way they could do this would be to support some original Republican values – some old classics – such as favoring state’s rights, limited government, and freedom from regulatory intrusion. The GOP could get a foothold in a key swing state and drive a wedge issue between Obama and some of his voters. They could expand their base by appealing to independents and some moderate liberals, people with whom legalizing marijuana is an issue of common sense. As Betsy Woodruff writes in an article making the same argument for National Review Online:
For the GOP, this is more than just an opening; it’s a magical messaging moment, which, to paraphrase Rahm Emanuel, conservatives shouldn’t let go to waste. “This is a classic example of where they can walk the walk,” says Tim Lynch of the Cato Institute. This isn’t really a drug-legalization issue; it’s a states’ rights issue and a limited-powers issue. All conservatives have to agree on is that the federal government might have better things to do with its freshly printed money than try to enforce a nigh-unenforceable [marijuana prohibition] law that local voters and leaders think was a bad idea in the first place.
If the GOP is going to be competitive in 2016, it has to communicate to young people that intrusive federal government makes their lives worse. It has to communicate that it’s the party that respects personal choice and individual responsibility. And it would probably help to communicate that when in doubt, the GOP doesn’t automatically take the side of the insanely expensive branch of the federal government that breaks into people’s homes, shoots their dogs, and imprisons them because they added a funny ingredient to their brownies.
The GOP could do all of this by publicly supporting the new laws in Colorado and Washington. They are desperate to attract young voters and minorities – at this point they are desperate for everyone – and in order for them to be competitive by 20-ever they need to get started. This is one way for them to do it, “one step in the right direction,” pre-packaged and wrapped in a bow.
(Full disclosure, and on a more personal note, I smoked pot pretty heavily for a while in high school, and for various reasons ended up losing my taste for it. At this point I haven’t so much as touched marijuana for at least five years. Most of my friends have smoked pot at one point or another, and many still do. Regardless of all that, I still strongly support the legalization of marijuana as a matter of personal choice, the same as smoking cigarettes, or watching porn, or eating cheese, or playing basketball, or getting a tonsillectomy, or face painting, or water sports…or anything else you can think of.)