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Published: Wed, 22 Nov 2017 00:00:00 -0500

Last Build Date: Wed, 22 Nov 2017 03:31:04 -0500


Sessions Says He Is Sticking With His Predecessors' Tolerance of State-Legal Marijuana

Tue, 14 Nov 2017 16:33:00 -0500

(image) Testifying before the House Judiciary Committee today, Attorney General Jeff Sessions confirmed that he is not abandoning his predecessors' policy of prosecutorial forbearance regarding state-licensed marijuana businesses. "Our policy is the same, really, fundamentally, as the Holder-Lynch policy, which is that the federal law remains in effect and a state can legalize marijuana for its law enforcement purposes, but it still remains illegal with regard to federal purposes," Sessions said in response to a question from Rep. Steve Chabot (R-Ohio).

Sessions left unsaid another key aspect of that policy, which was outlined in a 2013 memo from Deputy Attorney General James Cole. Cole encouraged federal prosecutors to leave state-legal cannabusinesses alone unless they impinge on "federal law enforcement priorities" such as preventing underage consumption, interstate smuggling, and drugged driving or other "adverse public health consequences." While the Cole memo leaves a lot of leeway for an attorney general who wants to take a harder line on marijuana, Sessions so far has not taken advantage of it, and he gave no indication today that he plans to do so, notwithstanding his own strong anti-pot prejudices.

Speaking of which, Rep. Steve Cohen (D-Tenn.) noted that Sessions had "said at one time that 'good people don't smoke marijuana.'" Cohen listed a bunch of prominent Republicans who are known to have smoked marijuana, including John Kasich, George Pataki, Rick Santorum, Newt Gingrich, Ted Cruz, Jeb Bush, George W. Bush, Arnold Schwarzenegger, and Clarence Thomas. "Which of those are not good people?" Cohen asked.

In response, Sessions said his statement that "good people don't smoke marijuana," which he made during a Senate hearing last year, should not be interpreted to mean that good people don't smoke marijuana. He said he only meant that it is salutary for the youth of America to believe that good people don't smoke marijuana, even if it is not true, because that belief will discourage them from messing with the devil's weed. "The question was, what do you about drug use, the epidemic we're seeing in the country," he said. "Part of that is a cultural thing. I explained how, when I became United States attorney in 1981, and the drugs were being used widely, over a period of years, it became unfashionable, unpopular, and people were seen, and it was seen as such, that good people didn't use marijuana. That was the context of that statement."

Cohen also got Sessions to concede that "marijuana is not as dangerous as heroin" and that he is bound to obey a spending rider approved by Congress that bars the Justice Department from interfering with the implementation of state medical marijuana laws, which federal courts have interpreted to mean that people cannot be prosecuted for actions that comply with those laws. This year Sessions urged legislators not to renew that rider.

Feds Admit Their Prosecution of Medical Marijuana Users in Washington Was Illegal

Wed, 18 Oct 2017 14:05:00 -0400

Since 2012 federal prosecutors have been trying to imprison three medical marijuana users in Washington, arguing that they grew cannabis for profit rather than relief of their symptoms. In a startling shift this week, the U.S. Attorney's Office in Spokane finally conceded what the defendants—Rhonda Firestack-Harvey; her son, Rolland Gregg; and his wife, Michelle Gregg—have been saying all along: that they grew marijuana in compliance with Washington's law allowing medical use of the plant. The government also admitted in a brief filed on Monday night that its pursuit of the case has therefore been illegal since December 2014, when Congress first passed a spending rider that prohibits the Justice Department from prosecuting people for conduct permitted by state medical marijuana laws. "This filing is a victory for the family and lawful medical marijuana users all across the country," says Phil Telfeyan, the defendants' attorney. "Our government should not use federal money to prosecute people abiding by state laws. This filing will have far-reaching effects that should help end the federal prosecution of marijuana users in states where it's legal." The Greggs and Firestack-Harvey, who received sentences ranging from one year to 33 months in October 2015, are the remaining defendants in what was dubbed the Kettle Falls Five case. The other two defendants were Jason Zucker, a family friend who pleaded guilty in exchange for a 16-month sentence just before the trial started in February 2015, and Firestack-Harvey's husband, Larry Harvey, who died of pancreatic cancer in August 2015. The Justice Department is now admitting that whole ordeal was illegal, because "the United States was not authorized to spend money on the prosecution of the defendants after December of 2014." The Greggs and Firestack-Harvey plan to seek dismissal of the case on that basis. Beginning in 2012, federal prosectors argued that the Kettle Falls Five, whose combined plant total was less than the limit set by Washington's medical marijuana law, were growing too much cannabis for their own use and must have been selling it. But there was never much evidence to support that theory, and the weakness of the government's case was reflected in the March 2015 verdict. The jury convicted the Greggs and Firestack-Harvey of growing marijuana but acquitted them of distribution and a related conspiracy charge. It also rejected the government's attempt to count plants grown in previous years, which would have triggered a five-year mandatory minimum sentence, and the allegation that the defendants possessed firearms "in furtherance of" a drug trafficking crime, a charge that carries an additional five-year mandatory minimum. The jury was not allowed to hear testimony about the medical use of marijuana, which the prosecution argued was irrelevant under federal law. But that was not actually true, since Congress had by the time of the trial barred the Justice Department from interfering with the implementation of state medical marijuana laws. In 2016 the U.S. Court of Appeals for the 9th Circuit, which includes Washington, ruled that the restriction made it illegal to prosecute people for actions that comply with such laws. Last June the 9th Circuit made it clear that the Justice Department was also barred from continuing to pursue cases initiated prior to the ban on interference. Before the Kettle Falls Five trial, Telfeyan argued that the case should be dismissed in light of the spending rider. U.S. District Judge Thomas Rice disagreed, noting that the prosecution was arguing that the defendants had not complied with state law. What has changed since then is not just the 9th Circuit's rulings, which prosecutors cited in this week's brief, but the government's abandonment of the claim that the defendants used medicine as an excuse to operate a marijuana business serving recreational users. "The United States concurs with the Attorneys for Appellants' statement of the issues presented as it relates to the Department of Justice not having[...]

3 Supreme Court Cases to Watch in Fall 2017

Mon, 02 Oct 2017 09:50:00 -0400

The U.S. Supreme Court is back in session today after its summer break, and the new term is already shaping up to be an explosive one. Here are three cases to watch in the coming months: 1. Carpenter v. United States The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet according to the U.S. Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Otherwise known as the third-party doctrine, this legal rule has been a great gift to law enforcement agencies on both the federal and state levels. Let's say the police want to know the email addresses of your correspondents, or the URLs of the websites you have visited. Under the third-party doctrine, the police do not need a search warrant (issued upon probable cause) to get that information from your internet service provider. But doesn't the idea of granting vast warrantless search powers to the police run afoul of the bedrock protections enshrined in the Fourth Amendment? The Supreme Court will grapple with those questions this term in Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cellphone records of suspected armed robber Timothy Carpenter. With those records, law enforcement officials identified the cell towers that handled the suspect's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter in court. According to Carpenter and his lawyers, "carrying a smartphone, checking for new emails from one's boss, updating the weather forecast, and downloading directions ought not license total surveillance of a person's entire life." According to the Trump administration, "a cell-phone user has no reasonable expectation of privacy in business records created by his provider documenting the cell sites used to document his calls." Oral arguments in Carpenter v. United States have not yet been scheduled. 2. Christie v. National Collegiate Athletic Association According to the terms of the federal Professional and Amateur Sports Protection Act of 1992 (PASPA), it is illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. The state of New Jersey, however, went ahead and legalized sports betting in certain casinos and racetracks by partially lifting its existing ban on the practice. According to the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, the Office of the Commissioner of Baseball, and the Trump administration, the state's legalization effort is illegal under PASPA. Put differently, Christie v. N.C.A.A. presents a clash between federalism and federal power. "Never before has congressional power been construed to allow the federal government to dictate whether or to what extent a State may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct," New Jersey told the Supreme Court in its petition for certiorari. "And never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal." PASPA is "an unremarkable exercise of Congress' settled power to regulate commerce in sports gambling," the sports leagues counter in their brief in opposition to the state's petition. "PASPA is a straightforward exercise of Congress' power to preempt the operation of state laws that conflict with federal policy on matters within Congress' purview." The Trump administration favors federal power in this matter too. PASPA "does not violate the Tenth Amendment because it neither compels States to regulate according to federal standards nor requires state officials to administer federa[...]

Graham-Cassidy Promises States More Flexibility; Leaves Washington Fully in Charge of Americans' Health Care

Thu, 21 Sep 2017 11:02:00 -0400

On the same day that 10 governors—a mix of Republicans and Democrats—announced their opposition to a new health care bill being positioned for a vote in the U.S. Senate, one governor's statement of support stood out. Arizona Gov. Doug Ducey, a Republican, said the Graham-Cassidy health care bill is "the best path forward to repeal and replace Obamacare," in a Facebook post Monday, and called for "Congress and the Administration to give states more flexibility and more options moving forward." The extent to which the Graham-Cassidy bill—so named because its chief architects are Sen. Lindsay Graham, R-S.C., and Sen. Bill Cassidy, R-La.—increases flexibility for states is a subject of some importance, and much debate, as the Senate mulls the proposal. Along with other changes to the Affordable Care Act, the bill would abolish Obamacare's Medicaid expansion and would instead block grant more than $1.1 trillion in federal health care spending to the states between 2020 and 2026. It would also allow states to waive Obamacare rules prohibiting charging different insurance rates to women and to people with pre-existing conditions, for example, and rules requiring coverage of certain benefits on the individual market. The bill would grant states significant new flexibility to determine how Obamacare dollars are spent. That might seem like a welcome sign that, as Ducey put it, Congress and the White House are interested in giving states more flexibility when it comes to health care policy. "This bill—while imperfect—gives states a real opportunity to re-imagine their healthcare systems," says Naomi Lopez Bauman, director of health care policy for the Arizona-based Goldwater Institute, a free market think tank. "If a state can figure out a way to use the subsidies to provide a direct benefit across the market, they can do it." That flexibility might only go so far. While Bauman sees the proposal as a flawed-but-potentially-positive step towards greater state-level control of health care policy, other analysts warn that state control over health care might be counter-productive if the goal is reducing the role of government in health care decisions. Any movement towards federalism in the Graham-Cassidy bill would come only with the expressed permission of the federal government, could be rescinded at any time, and may not even survive next week's expected Senate debate on the bill. Already, there are movements to limit what states can do with those block grants. "If you give a big chunk of money to California, they're going to go set up a single-payer system run by the state and then come back and say 'we don't have enough money, we need more,'" Sen. John Kennedy, R-La., told the Washington Examiner on Monday. He's proposed adding language to the Graham-Cassidy bill explicitly forbidding states from using the new block grants towards the establishment of a state-run single-payer system. On one hand, Kennedy is right to be worried about the cost of single-payer plans set up by California or New York. "Given the renewed enthusiasm on the left for the abolition of private health insurance through single-payer systems, there can be little doubt that this is the direction that blue states will take under Graham-Cassidy," predicts Avik Roy, president of the Foundation for Research on Equal Opportunity, a free market think tank. Those systems are likely to be far more expensive than what would be covered by the Graham-Cassidy block grants—and, once established, could be used as an argument for increasing federal funding to the states. Allowing states to experiment with health care policy could help policymakers discover what works and what doesn't. A single-payer plan in Vermont collapsed because the state could not pay for it, and efforts in New York, California, or elsewhere are likely to meet the same ends. "Some states will get it right; others won't," says Lopez Bauman. "But it is far preferable to have fifty laboratories of democracy than [...]

House Rules Committee Blocks Amendment Protecting Medical Marijuana

Thu, 07 Sep 2017 12:50:00 -0400

Yesterday the House Rules Committee blocked a floor vote on an amendment barring the Justice Department from interfering with state laws allowing medical use of marijuana. The amendment, which was first enacted in 2014 and has been renewed twice since then, could still be included in the final spending bill, since it has been approved by the Senate Appropriations Committee. Any differences between the House and Senate versions of the bill will be worked out by a bicameral conference committee. "By blocking our amendment, Committee leadership is putting at risk the millions of patients who rely on medical marijuana for treatment, as well as the clinics and businesses that support them," said the amendment's current sponsors, Reps. Dana Rohrabacher (R-Calif.) and Earl Blumenauer (D-Ore.). "This decision goes against the will of the American people, who overwhelmingly oppose federal interference with state marijuana laws. These critical protections are supported by a majority of our colleagues on both sides of the aisle. There's no question: If a vote were allowed, our amendment would pass on the House floor, as it has several times before." Attorney General Jeff Sessions urged Congress to block the Rohrabacher-Bluemnauer amendment last May, arguing that "it would be unwise to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime." Exactly what medical marijuana had to do with any of that was unclear, but the Justice Department generally opposes limits on its prosecutorial discretion, and Sessions' anti-pot prejudices are well-known. In a Washington Post op-ed piece this week, Rohrabacher rebutted Sessions' clumsy attempt to blame medical marijuana for recent increases in opioid use and opioid-related deaths. To the contrary, he said, marijuana is a safer alternative to opioids. "The drug-war apparatus will not give ground without a fight," he wrote, "even if it deprives Americans of medical alternatives and inadvertently creates more dependency on opioids. When its existence depends on asset seizures and other affronts to our Constitution, why should anti-medical-marijuana forces care if they've contributed inadvertently to a vast market, both legal and illegal, for opioids?" Unlike Sessions, Donald Trump has repeatedly said he supports medical marijuana and thinks states should be free to allow it. So even if the Rohrabacher-Blumenauer amendment is not renewed for the next fiscal year, it is not clear that Sessions will try to shut down state-licensed medical marijuana suppliers. The amendment does not cover state-legal marijuana merchants serving the recreational market, who nevertheless have escaped prosecution so far, even though they are openly committing federal felonies every day. A cannabis crackdown would not be popular. In the most recent Quinnipiac University poll, 61 percent of registered voters said marijuana should be legal for recreational use, while a whopping 94 percent said medical use should be allowed. Seventy-five percent opposed enforcement of the federal ban in states that have legalized marijuana for either purpose. "When an overwhelming majority of Americans oppose federal interference in state medical marijuana programs, it is unconscionable not to let their representatives vote on whether to continue this policy," said Don Murphy, director of conservative outreach at the Marijuana Policy Project. "Unless Congress chooses the Senate budget version, millions of seriously ill patients and the legitimate businesses that provide them with safe access to their medicine will be at risk of prosecution. This vote is a slap in the face of patients, their families, their elected representatives, and the 10th Amendment."[...]

Colorado's Governor Sets Jeff Sessions Straight on Marijuana Legalization

Fri, 25 Aug 2017 15:14:00 -0400

Yesterday Colorado's governor responded to Attorney General Jeff Sessions' concerns about the consequences of marijuana legalization in that state, showing once again that the devastation perceived by prohibitionists has little basis in reality. If Sessions is serious about collaborating with state officials in addressing federal priorities such as underage consumption, stoned driving, and interstate smuggling, he will have to recognize the difference between what scaremongers claim and what the data actually show. In his July 24 letter to Colorado Gov. John Hickenlooper, for instance, Sessions worried about a 20 percent increase in adolescent marijuana use "after Colorado enacted 'recreational marijuana' laws." That number comes from a regional anti-drug task force known as the Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA), which calculated, based on data from the National Survey on Drug Use and Health (NSDUH), that the incidence of past-month marijuana use among 12-to-17-year-olds in Colorado rose from 10.5 percent in 2011-12, before legalization, to 12.6 percent in 2013-14, after legalization began to take effect. The difference is indeed 20 percent, but it is not statistically significant—a point that RMHIDTA, which is committed to building a case against legalization rather than objectively assessing its results, neglected to mention. As Hickenlooper and Colorado Attorney General Cynthia Coffman note in their August 24 reply to Sessions, the Healthy Kids Colorado Survey (HKCS), which has a much larger sample of Colorado teenagers than NSDUH does, likewise "found no statistically significant change in youth marijuana use rates following legalization." Even after state-licensed marijuana merchants began serving recreational consumers in 2014, according to a recently published analysis of HKCS data, cannabis consumption by teenagers was "unchanged." And as Hickenlooper and Coffman point out, "the most recent NSDUH report indicates that between 2013-14 and 2015-16—the period in which adult-use marijuana businesses opened their doors—youth marijuana use [in Colorado] declined by 12 percent." Sessions also quoted RMHIDTA's claim that "marijuana-related traffic deaths increased 48 percent in the three-year average (2013-2015) since Colorado legalized recreational marijuana compared to the three-year average (2010-2012) prior to legalization." But as the fine print of the RMHIDTA report acknowledges, "marijuana-related traffic deaths" are not necessarily traffic deaths related to marijuana. Rather, they are "fatalities involving operators testing positive for marijuana," which does not show that they were impaired by marijuana at the time of the crash, let alone that marijuana caused the crash. "A subject might have a positive test result when either active THC—which produces marijuana's psychoactive effect—or one of its inactive metabolites are present in the subject's blood," Hickenlooper and Coffman note. Even when active THC is detected, the level may not be high enough to affect driving ability. It is therefore impossible to tell from the data cited by Sessions whether stoned drivers are actually causing more crashes than they did before legalization. Today The Denver Post reported that the number of drivers involved in fatal crashes who tested postive for THC or an inactive metabolite rose again last year in Colorado, from 88 to 115. But it remains unclear how many of these crashes were caused by marijuana intoxication. The Post says 71 drivers tested positive for active THC, including 45 who had THC blood concentrations higher than five nanograms per milliliter, the level at which Colorado law allows juries to infer impairment. But that presumption is rebuttable in court, and in reality many drivers who exceed the five-nanogram cutoff are not impaired. It would help to know whether THC-positive drivers were deemed to be at fault, but the data cited by the P[...]

In Major Federalism Case at SCOTUS, New Jersey Fights to Legalize Sports Gambling

Thu, 24 Aug 2017 09:20:00 -0400

The state of New Jersey is on a constitutional collision course with both the federal government and several of the biggest names in professional and collegiate sports. At issue is whether Congress violates the 10th Amendment when it forbids the Garden State from partially repealing its own statewide ban on sports betting. The case is Christie v. National Collegiate Athletic Association, and it has the makings to be one of the biggest federalism cases in years. The U.S. Supreme Court will hear arguments in it later this fall. On one side stands the state of New Jersey, whose voters amended the state constitution in 2012 in order to legalize sports gambling at racetracks and casinos statewide. Lawmakers then partially lifted the existing state ban on the practice. On the other side of the case stands the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and the Office of the Commissioner of Baseball, all of which went to court hoping to thwart the legalization effort. They argue that the state has contravened the Professional and Amateur Sports Protection Act of 1992 (PASPA), which made it illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. That federal law did contain certain exemptions for states like Nevada, where sports gambling was already legal. (It also contained an exemption for Atlantic City, New Jersey.) But the law's overall purpose was to prevent states from legalizing sports betting. New Jersey is now fighting to get the feds off its back. "Never before has congressional power been construed to allow the federal government to dictate whether or to what extent a State may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct," New Jersey told the Supreme Court in its petition for certiorari. "And never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal." The sports leagues insist that the federal government has every right to control the states in this manner. PASPA is "an unremarkable exercise of Congress' settled power to regulate commerce in sports gambling," the leagues claim in their brief in opposition to the state's petition. "PASPA is a straightforward exercise of Congress' power to preempt the operation of state laws that conflict with federal policy on matters within Congress' purview." The Trump administration takes an equally broad view of federal power. PASPA "does not violate the Tenth Amendment because it neither compels States to regulate according to federal standards nor requires state officials to administer federal law," the administration told the Court in an amicus brief. "Instead, [PASPA] prohibits States from operating sports-gambling schemes themselves or affirmatively licensing or authorizing private parties to do so. Those prohibitions are a permissible exercise of Congress's authority to regulate state activities and to preempt state laws that conflict with federal policy in an area within Congress's enumerated powers." A nationwide ban on sports betting would probably be upheld by the Supreme Court under existing precedent, which favors a very broad view of Congress' power to regulate economic activity. But that is not the sort of federal regulation at issue here. In this case, Congress has effectively dictated the terms of a state law in order to further its own regulatory goals. And that, the Supreme Court has repeatedly said, does offend federalism principles and does infringe on the 10th Amendment. In the 1992 case of New York v. United States, for example, the Court observed: "while Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer [...]

Governors Challenge Jeff Sessions' Tendentious Questions About Legal Pot

Thu, 17 Aug 2017 15:35:00 -0400

Officials in Washington and Alaska are pushing back against Attorney General Jeff Sessions' tendentious questions about the consequences of marijuana legalization in those states, and similar resistance is likely from Colorado and Oregon. The exchange suggests how complicated it may be for Sessions to find reasons to crack down on state-licensed marijuana businesses without explicitly reversing the Obama administration's policy of leaving them alone unless they implicate "federal law enforcement priorities." On July 24, Sessions sent letters to the governors of Alaska, Colorado, Oregon, and Washington, the first four states to allow recreational use of marijuana. He argued that legalization had led to serious problems and asked what state officials planned to do about them. The letters relied heavily on reports from High Intensity Drug Trafficking Areas (HIDTAs), regional task forces that are committed to opposing legalization and skew information with that goal in mind. In his letter to Washington Gov. Jay Inslee and Attorney General Bob Ferguson, for instance, Sessions asked "how Washington plans to address the findings in the Northwest HIDTA report, including efforts to ensure that all marijuana activity is compliant with state marijuana laws, to combat diversion of marijuana, to protect public health and safety, and to prevent marijuana use by minors." In their August 15 reply, which was obtained by The Cannabist, Inslee and Ferguson say some of those findings are "outdated, incorrect, or based on incomplete information." Sessions, for example, quoted a 2016 HIDTA report as saying that Washington's medical marijuana market "is considered 'grey' due to the lack of regulation and oversight." But that report preceded legislation that required all dispensaries to shut down or obtain licenses and comply with state regulations. Inslee and Ferguson also complain that "your letter repeatedly fails to distinguish between marijuana activity that is legal and illegal under state law," as when it cites explosions at illegal THC extraction labs or mentions the Northwest HIDTA's claim that Washington marijuana has been found in "43 other states" without specifying whether any of it it was obtained from state-licensed suppliers. In fact, Inslee and Ferguson note, "this statistic covers several years before our recreational sales even began." Sessions' numbers regarding stoned driving are equally unilluminating. "Several of the statistics quoted in your letter on the increasing incidence of marijuana DUIs are distorted by the fact that the testing regime has changed with state legalization," Inslee and Ferguson say. "Prior to marijuana legalization, blood testing for THC at suspected DUI traffic stops was substantially less common. Consequently, comparable statistics do not exist." Another complication is that a positive test for THC does not necessarily mean the driver was impaired. In their August 14 reply to Sessions (which was also obtained by The Cannabist), Alaska Gov. Bill Walker and Attorney General Jahna Lindemuth raise an even more decisive objection to Sessions' numbers. "Pointing to our 2015 Annual Drug Report, your July 24 letter questions whether our regulatory framework adequately protects federal interests," they write. "As an initial matter, the statistics in the 2015 report cannot be fairly attributed to the industry since sales from state-licensed businesses did not begin until 2016. The report simply does not speak to the success or failure of the new regulatory framework." Sessions, like the HIDTAs on which he relies, is obviously eager to impugn legalization, so eager that he does not let facts or logic get in his way. But since he is ostensibly engaged in a collaborative effort with state officials, he can expect to be challenged whenever he goes beyond what we actually know about the consequences of legalization. That di[...]

Sessions Stays Off the Grass

Wed, 09 Aug 2017 00:01:00 -0400

Attorney General Jeff Sessions has moved swiftly to encourage the use of mandatory minimum sentences and civil asset forfeiture, two major weapons of a war on drugs he seems bent on escalating. But six months after taking office, Sessions, despite his well-known anti-pot prejudices, has not challenged the legalization of marijuana in any serious way, and it is starting to look like he may never do so. Last week the Associated Press reported that an advisory panel Sessions charged with studying the issue "has come up with no new policy recommendations to advance the attorney general's aggressively anti-marijuana views." While that may seem surprising, there are sound practical and political reasons for Sessions to think twice before trying to shut down the state-licensed marijuana businesses that blatantly violate federal law every day. Sessions has made no secret of his displeasure at the ongoing collapse of marijuana prohibition. But so far his concerns have not resulted in any prosecutions, forfeitures, or even threatening letters. Nor has he tried to challenge state marijuana laws in federal court. Instead Sessions has been waiting for advice from the Justice Department's Task Force on Crime Reduction and Public Safety. According to the A.P., which obtained parts of the task force's unpublished interim report, that advice is "vague" and "tepid," recommending a wait-and-see approach little different from the Obama administration's. The report does say the Justice Department "should evaluate whether to maintain, revise or rescind" the 2013 memo from Deputy Attorney General James Cole that established a policy of prosecutorial restraint regarding state-legal cannabusinesses. But the task force does not advocate any of those options, and Sessions does not seem inclined to scrap the Cole memo, which he has called "truly valuable in evaluating cases." The memo leaves lots of leeway for more vigorous enforcement of the federal ban on marijuana. It lists eight "enforcement priorities" that could justify federal action against state-licensed marijuana producers and distributors, several of which are so ambitious (e.g., preventing marijuana from crossing state lines) or so broad (e.g., preventing "adverse public health consequences") that they could always be used as a pretext for prosecution. Sessions, who as a senator complained that the Obama administration was not taking the memo's conditions seriously enough, recently sent Washington Gov. Jay Inslee and Attorney General Bob Ferguson a letter asking how they plan to address several concerns related to the enforcement priorities, including interstate smuggling, stoned driving, and underage consumption. If he is not satisfied by their response, Sessions theoretically could take matters into his own hands, but a cannabis crackdown would not necessarily deliver results he likes. Since all but one of the eight states that have legalized marijuana for recreational use allow home cultivation, shutting down state-licensed cannabusinesses would undermine federal enforcement priorities by making production and distribution less visible and harder to monitor. So would a lawsuit that successfully challenged state licensing and regulation of marijuana merchants as contrary to the Controlled Substances Act. Sessions also may be reluctant to further irk a boss who has been publicly castigating him for weeks over his handling of the investigation into Russian meddling in the presidential election. While running for president, Donald Trump repeatedly said he favors allowing medical use of marijuana, as 29 states now do. Trump was less keen on legalizing recreational use but said the decision should be left to the states. Abandoning that commitment to marijuana federalism would be politically risky. According to a Quinnipiac University poll completed last week, 61 percent of A[...]

More Evidence That Jeff Sessions' Cannabis Crackdown May Never Materialize

Mon, 07 Aug 2017 12:55:00 -0400

Despite Attorney General Jeff Sessions' well-known anti-pot prejudices, a broad federal crackdown on marijuana in states that have legalized it seems unlikely in light of the recommendations from a Justice Department subcommittee charged with studying the issue. The Associated Press reports that the panel, part of the DOJ's Task Force on Crime Reduction and Public Safety, "has come up with no new policy recommendations to advance the attorney general's aggressively anti-marijuana views." According to the A.P., which obtained a copy of the unpublished recommendations, the subcommittee does say officials "should evaluate whether to maintain, revise or rescind" the 2013 memo from Deputy Attorney General James Cole that established a policy of prosecutorial restraint regarding state-licensed marijuana businesses. But the report does not settle on any of those options, and so far Sessions seems inclined to use the Cole memo as a guide to enforcement rather than scrapping it. The memo, which Sessions has called "truly valuable in evaluating cases," leaves lots of leeway for more vigorous enforcement of the federal ban on marijuana. It lists eight "enforcement priorities" that could justify federal action against state-licensed marijuana producers and distributors, several of which are either impossible to fully achieve (e.g., "preventing the diversion of marijuana from states where it is other states") or so broad that they could always be used as a pretext for a crackdown (e.g. preventing "adverse public health consequences associated with marijuana use"). As Mike Riggs noted here last Friday, Sessions recently sent Washington Gov. Jay Inslee and Attorney General Bob Ferguson a letter asking how they plan to address several concerns related to the enforcement priorities, including interstate smuggling, stoned driving, and underage consumption. "Please advise as to how Washington ensure that all marijuana activity is compliant with state marijuana laws, to combat diversion of marijuana, to protect public health and safety, and to prevent marijuana use by minors," Sessions wrote. He also pointedly noted that the Cole memo says "nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest." In short, Sessions could cause a lot of trouble for the newly legal cannabis industry without bothering to retract the Cole memo, which is vague and ambiguous enough to accommodate policies ranging from laissez-faire to prosecution and forfeiture threats that put many or most marijuana merchants out of business. There are several reasons to think Sessions' approach will land somewhere in the middle. Sessions has been in charge of the Justice Department for six months, and so far his hostility toward marijuana legalization has not gone beyond rhetorical expressions of concern. It has not resulted in prosecutions, forfeitures, or even threatening letters to cannabusinesses. Nor has Sessions signaled that he plans to challenge state marijuana laws in federal court. Instead he punted the issue to a committee, which settled on a wait-and-see position that the A.P. describes as "tepid" and "vague." By contrast, Sessions acted swiftly to step up the war on drugs in other ways, reviving federal "adoption" of civil forfeitures initiated by state or local agencies and establishing a tougher charging policy that is apt to result in more mandatory minimum sentences for nonviolent drug offenders. Sessions may recognize that a full-blown cannabis crackdown would not necessarily deliver results he would like. Since all but one of the eight states that have legalized marijuana for recreational use allow home cultivation, shutting dow[...]

Rejecting Sessions' Plea, Senate Panel Votes to Protect Medical Marijuana

Thu, 27 Jul 2017 13:20:00 -0400

Jeff Sessions' former Senate colleagues, dismayed at Donald Trump's humilating tweets and comments about him, are rallying to his defense, urging the president to stop castigating an attorney general he describes as a "beleaguered" and "very weak" disappointment. But their solidarity with Sessions goes only so far, as demonstrated by today's vote on a spending rider that blocks Justice Department interference with medical marijuana laws. The Senate Appropriations Committee approved the rider, known as the Rohrabacher-Farr amendment, by a voice vote, indicating that it was not controversial among the panel's members, who include 16 Republicans. The committee thereby rejected a personal plea by Sessions to let the amendment lapse. "I write to renew the Department of Justice's opposition to the inclusion of language in any appropriations legislation that would prohibit the use of Department of Justice funds or in any way inhibit its authority to enforce the Controlled Substances Act," Sessions said in a May 1 letter to Senate and House leaders. "I believe it would be unwise to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime." Evidently Sessions' former colleagues found that logic, tying medical marijuana to violence and heroin use, unpersuasive. The committee's approval of the rider Sessions opposes, which was first enacted in 2014 and has been renewed each year since then, sets the stage for its inclusion in the final bill providing funding for the Justice Department. "This vote is not only a blow against an outdated Reefer Madness mindset," says Marijuana Majority Chairman Tom Angell, who first reported Sessions' letter. "It is a personal rebuke to Jeff Sessions. The attorney general, in contravention of President Trump's campaign pledges and of public opinion, specifically asked Congress to give him the power to arrest and prosecute medical marijuana patients and providers who are following state laws. A bipartisan group of his former Senate colleagues just said no. A majority of states now allow medical cannabis, and we will not allow drug warriors in the Justice Department to roll back the clock. The war on marijuana is ending, even if Jeff Sessions doesn't realize it yet." Two weeks ago, the same Senate committee, by a vote of 24 to 7, approved an amendment that would have permitted Veterans Health Administration doctors to recommend marijuana as a treatment in states that allow medical use. Last year that amendment passed the Senate and House by wide margins but did not end up in the final appropriations bill. Yesterday the House Rules Committee voted to keep the rider from proceeding to a floor vote.[...]

Sessions Boosts Forfeiture and Mandatory Minimums but Lets Pot Prohibition Collapse

Fri, 21 Jul 2017 14:25:00 -0400

If you were familiar with Attorney General Jeff Sessions' history as an unreconstructed drug warrior, you probably were not surprised that he quickly moved to reverse the modest restraints that Eric Holder imposed on the use of mandatory minimum sentences and civil asset forfeiture. By contrast, while Sessions has been openly displeased by the ongoing collapse of marijuana prohibition, he has so far done nothing to stop it, even though he could easily cause a lot of trouble for the newly legal cannabis industry. As implausible as it might seem, the difference may actually have something to do with his boss's policy preferences. Donald Trump is not known for detailed or carefully considered policy positions. But the memo that Sessions sent to federal prosecutors on May 10, which urges them to bring the most serious provable charge except in extraordinary cases, is consistent with Trump's tough-on-crime campaign rhetoric. "Decades of progress made in bringing down crime are now being reversed by this administration's rollback of criminal enforcement," Trump complained in his speech at the Republican National Convention last July. "Homicides last year increased by 17 percent in America's 50 largest cities. That's the largest increase in 25 years." Sessions attributes the 2015 increase in violent crime to the charging policy he reversed, which was aimed at helping low-level, nonviolent drug offenders avoid mandatory minimums. That claim is logically impossible, since Holder's policy was not established until August 2013 and could not have had as big and as fast an impact as Sessions suggests. But the important point is that Trump and Sessions see eye to eye when it comes to blaming the uptick in violent crime on the Obama administration's prosecutorial laxity. Trump and Sessions likewise agree that Holder's elimination of federal "adoption" as a way for local law enforcement agencies to avoid state restrictions on forfeiture imposed a baffling and indefensible limit on the use of a crucial law enforcement tool. During a meeting with county sheriffs in February, Trump made two things abundantly clear: He does not really understand what civil forfeiture is, and he wants to see more of it. "There's no reason for that," the president said, referring to restrictions on forfeiture. "So asset forfeiture, we're going to go back on, OK? I mean, how simple can anything be?" Like most things, civil forfeiture, which allows police to take property allegedly linked to crime without charging the owner, is not quite as simple as Trump thinks. But he could not have given Sessions a greener light for undoing Holder's reform (which in any case did not affect most of the forfeiture revenue flowing to state and local agencies through the Justice Department's Equitable Sharing Program). "President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that," Sessions said on Wednesday. "We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet." The signal for interfering with state legalization of marijuana, by contrast, has been yellow at best. While running for president, Trump repeatedly said he thought medical use of marijuana should be allowed and, while he had his doubts about broader legalization, believed the decision should be left to the states. It would be politically awkward to reverse that position, especially now that 29 states allow medical use and one in five Americans lives in a state where recreational use is legal. So far Trump has not tried to renounce marijuana federalism. The closest he came was when White House Press Secretary Sean Spicer drew a distinction last February between medical and[...]

Does Donald Trump Have Anything to Do With Constitutional Conservatism?

Thu, 13 Jul 2017 13:17:00 -0400

One of the more interesting, depressing, and still-unresolved questions about the Republican Party in the era of Donald Trump is whether the limited-government philosophy that seemed to animate the Tea Party's ascendance in 2009-2010 is still an active thing. (See the bottom of this post for several links which poke at the issue from various angles.) The question has implications for all kinds of policy questions—from the health care debate, where the Senate's Tea Party caucus currently form the hinge-point on which the legislation balances, to forthcoming debates on taxes, budgets, debt ceilings, surveillance, Russian investigations, and more. Given the wariness with which many libertarians treat the Trump presidency, it came as a surprise for some to read this Politico magazine headline from Tuesday: "Is Trump a Conservative? Mike Lee Says Yes." For instance, Cato Institute Vice President David Boaz in the piece expresses surprise at Lee's assessment: "It seems to me it's pretty obvious that Trump is not a conservative," Boaz said. He prefers to describe Trump as "a scary authoritarian, nationalist, protectionist cronyist." […] Boaz doesn't think there's any way to reconcile Trump with small-government conservatism. […] "One question for intellectual conservatives," Boaz said, "is, 'Have you become such partisans that you've forgotten how to be intellectuals?'" So how does Lee, a senator who on multiple occasions has expressed revulsion at Trumpism, make the constitutional-conservative case for a president he never endorsed? I asked him that Monday, in a Sirius XM interview tied to the release of his new book, Written Out of History: The Forgotten Founders Who Fought Big Government, in the form of soliciting his response to the theory from libertarian-leaning Rep. Thomas Massie (R-Kentucky) that more than philosophy, Tea Party voters "were voting for the craziest son of a bitch in the race. And Donald Trump won best in class, as we had up until he came along." Lee's response pointed heavily to Trump's record on deregulation: Look, the fact is that the wave that swept Donald Trump to power was motivated to a significant degree by people who share these principles, by people who are wanting to restore constitutionally limited government. A good part of "draining the swamp" necessarily entailed identifying those areas in which the federal government has overreached, and identifying respects in which we have violated these twin structural protections in the Constitution, the vertical protection we call federalism, and the horizontal protection we call separation of powers. And so whether we want to call it this or that, whether we acknowledge it as an effort to restore constitutionally limited government or not, that is in fact what it is. And that is in fact going to be what saves our republic from the accumulation of power that's been occurring in Washington over the last 80 years. More from the interview: MW: Although with the exception of deregulation−which is a very important exception in this presidency that isn't getting a lot of ink right now just because there's so many other things to talk about−you don't hear a lot of that kind of talk from the president himself. He's not talking a lot about separation of powers, not talking a lot about devolving power, and that kind of thing. Or am I just missing it? ML: Well, I think it's impossible to extricate federalism from separation of powers. In other words, when he talks about over-regulation, whether he uses these terms or not, he's really referring to the two-step process by which power has been taken from the American people. First it's been taken from them at the state and local level and moved to Washington, and secondly it's b[...]

GOP Pushes Bad, Punitive Anti-Federalist Immigration Bills Through the House

Fri, 30 Jun 2017 14:20:00 -0400

House Republicans overwhelmingly voted in favor of two bad immigration-focused bills yesterday that potentially punish those in the United States illegally with new harsh prison sentences and attempts to push cities into helping federal authorities deport people. The first bill, popularly known as "Kate's Law," adds new criminal penalties and federal prison sentences to any immigrant who returns to the United States after being deported for criminal behavior. But it also threatens up to 10 years in federal prison for illegal immigrants who repeatedly return to the United States after being deported, even if they've committed no other crimes. It also forbids the immigrant from challenging the legitimacy of any prior removal orders. The second bill, the "No Sanctuary for Criminals Act," attempts to push cities, particularly so-called "sanctuary cities," into cooperating with federal immigration officials to detain and eject those in the country illegally. President Donald Trump (and many, many other Republicans) made a big deal about fighting sanctuary cities—which generally don't ask residents or people who interact with government officials about their citizenship status—on the campaign trail. But after Trump took office, his Department of Justice was faced with an awkward truth: Most sanctuary cities are not defying federal laws at all, and there's not much the government can currently do about them. Federal laws do not require that cities and local law enforcement assist immigration officials by detaining people the feds want to deport. Immigration and Customs Enforcement (ICE) can ask cities to hold illegal immigrants for in "detainer orders." But they're requests. Cities have their own rules about when they'll comply with such orders (often requiring court orders or a warrant for cooperation). Ultimately after the Department of Justice started threatening federal grant money to sanctuary cities, they ended up discovering that really only a handful of governments (eight cities and one county) are behaving in a way that was even remotely in defiance of federal authority. What the "No Sanctuary for Criminals Act" does is forbid municipalities from stopping local law enforcement officials from helping federal immigration officials by complying with detainer orders. In areas of immigration enforcement, it overrules the ability of cities to control the behavior of their own law enforcement officers. The act also classifies specifically which grants the federal government would withhold from sanctuary cities that defy them. Previously the administration through executive order threaten to withhold all sorts of federal grants, but the courts have previously ruled such behavior unconstitutional. The grants have to be connected to enforcing the laws themselves. This act specifically defines which grants could be denied sanctuary cities. The votes fell mostly across party lines—Republicans in favor of the two bills and Democrats against them. More Democrats were willing to cross the aisle to vote in favor of harsher criminal sentences for illegal immigrants than to cut federal grants from sanctuary cities, so make of that what you will. Only one Republican voted against both bills, libertarian Rep. Justin Amash of Michigan. Amash tweeted his reasons why. He found both bills to significantly violate the Constitution and the concept of federalism: I voted no today on two bills that together violate the 1st, 4th, 5th, 10th, and 11th Amendments. I will always defend our Constitution. — Justin Amash (@justinamash) June 29, 2017 A spokesperson for Amash's office told Reason, "Rep. Amash supports securing our borders and has voted to defund sanctuary cities, but these bills go[...]

Juries Can Acquit the Guilty, 9th Circuit Says, but 'There Is No Right to Nullification'

Tue, 20 Jun 2017 10:15:00 -0400

Advocates of jury nullification argue that jurors have both the power and the right to acquit a guilty defendant if they believe the law or its application is unjust. According to a recent ruling by a federal appeals court, they are half right. USA v. Kleinman involves an operator of medical marijuana dispensaries in California who was convicted of federal drug charges and sentenced to nearly 18 years in prison. Among other things, the defendant, Noah Kleinman, argued that the judge had improperly instructed the jury regarding nullification. The U.S. Court of Appeals for the 9th Circuit agreed but said the error was harmless because "there is no right to nullification." Here is what the judge told the jury: You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case. The 9th Circuit had no problem with the first three sentences, which (not surprisingly) reflect the view of most judges and prosecutors: The jury's job is to determine the facts, not to judge the law. If a juror concludes beyond a reasonable doubt that a defendant's actions meet the statutory definition of the crime with which is charged, the juror's duty is to vote for conviction, even if he thinks the statute is unjust or that applying it to the defendant would be grossly unfair. "If Kleinman's jury had exercised its power to nullify, it presumably would have disregarded the court's instructions on federal drug law and the court's antinullification instructions," the appeals court said. "The court had no duty to make the jury aware of its power to nullify, and properly instructed the jury that it could not (1) substitute its sense of justice for its duty to follow the law, or (2) decide whether a law is just or unjust." But the 9th Circuit said the last two sentences of the jury instruction went too far by implying that a not-guilty verdict in such a case would be legally invalid and that jurors might be punished for it. "The court's statement that the jury 'would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case,' may imply punishment for nullification, because 'violate your oath and the law,' coming from the court in a criminal trial, could be understood as warning of a possible violation with associated sanctions. Additionally, the statement that '[t]here is no such thing as valid jury nullification' could reasonably be understood as telling jurors that they do not have the power to nullify, and so it would be a useless exercise. While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification." The appeals court nevertheless rejected Kleinman's argument that the erroneous jury instruction required reversal of his conviction. "It is not fundamentally unfair for a defendant to be tried by a jury that is not fully informed of the power to nullify," the court said, "or even that is stripped of the power to nullify, because there is no right to nullification. Although a jury should not be led to believe that jury nullification will result in punishment or an invalid acquittal, the court's misstatement by implication does not rise to the level of denial of Kleinman's due process rights." The decision, which was iss[...]