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Federalism



All Reason.com articles with the "Federalism" tag.



Published: Mon, 26 Sep 2016 00:00:00 -0400

Last Build Date: Mon, 26 Sep 2016 07:12:34 -0400

 



Democrats Strengthen Platform Language Supporting Marijuana Reform

Thu, 14 Jul 2016 08:48:00 -0400

(image) The Democratic Party's platform committee, which already had approved reform-friendly language on marijuana, strenghtened that plank over the weekend, adopting an amendment backed by Bernie Sanders delegates that recommends rescheduling the drug to provide "a reasoned pathway for future legalization." That stance seems like a compromise between the positions staked out by presumptive nominee Hillary Clinton, who says marijuana should be moved from Schedule I to Schedule II of the Controlled Substances Act (CSA) to facilitate research, and Sanders, who last fall became the first senator to introduce legislation that would repeal the federal ban on cannabis by removing the plant and its products from the CSA's schedules altogether.

The earlier platform language endorsed marijuana federalism and added, "We support policies that will allow more research on marijuana, as well as reforming our laws to allow legal marijuana businesses to exist without uncertainty." The new language says, "Because of conflicting laws concerning marijuana, both on the federal and state levels, we encourage the federal government to remove marijuana from its list as a Class 1 [sic] Federal Controlled Substance, providing a reasoned pathway for future legalization." Assuming that plank is in the final version of the platform, it will be the first time either major party has endorsed marijuana legalization, even as a distant prospect.

On Monday, meanwhile, the GOP platform committee rejected a much milder plank that voiced support for states that allow medical use of noncombustible marijuana products. The Huffington Post reports that one opponent of the language warned that mass murderers are "young boys from divorced families, and they're all smoking pot." Was that you, Roger Morgan?




Feds and South Carolina Both Want to Execute Dylann Roof

Wed, 25 May 2016 07:30:00 -0400

(image) Yesterday the Justice Department further illustrated the unconstitutional absurdity of the federal hate crime statute by announcing that it will seek the death penalty for Dylann Roof, the man charged with murdering nine people at a church in Charleston, South Carolina, last June. Roof already faces the death penalty if he is convicted in his state murder trial, which is scheduled to begin in January. Do the feds think he should be executed twice?

The federal prosecution is worse than pointless. In the unlikely event that Roof is acquitted by a South Carolina jury, he can be tried again in federal court. That looks an awful lot like double jeopardy, except that the Supreme Court has arbitrarily decreed that serial prosecutions for the same conduct in state and federal courts do not violate the Fifth Amendment.

Roof's bigoted beliefs figured into the rationale for prosecuting him under federal law and the decision to seek the death penalty. He is charged with selecting his victims "because of" their race, and his racist statements before and during the mass shooting count as evidence of that motivation. Explaining their decision to ask for the death penalty rather than life imprisonment, prosecutors cited nine aggravating factors, including the fact that Roof "expressed hatred and contempt towards African-Americans, as well as other groups, and his animosity towards African-Americans played a role in the murders charged in the indictment."

The upshot is that Roof, because of the opinions he has expressed, is more likely to be convicted (since prosecutors can try him again if he's acquitted the first time) and more likely to be executed for his crimes (since if state jurors reject the death penalty federal jurors might still approve it). The Supreme Court says enhancing criminal penalties based on the defendant's bigoted motivation does not amount to punishing him for his beliefs. The Supreme Court is wong.

In addition to the double jeopardy and First Amendment issues, federal prosecutions like this one usurp the powers reserved to the states by the 10th Amendment. Murder is and always has been a state crime, and South Carolina is perfectly capable of prosecuting Roof for it. There is no need or valid constitutional rationale for federal involvement, the justification for which hinges on a reading of the 13th Amendment that could generously be described as implausible.

The federal prosecution of Dylann Roof is not about justice, which South Carolina is already pursuing. Last summer The New York Times reported that "Justice Department and F.B.I. officials have said the Charleston shooting was so horrific and racially motivated that the federal government must address it." In other words, the DOJ is trampling on federalism, freedom of speech, and a basic principle of criminal justice in order to make a political statement.




Oklahoma and Nebraska Try to Revive Their Challenge to Legal Pot in Colorado

Tue, 26 Apr 2016 08:45:00 -0400

(image) Having failed to interest the U.S. Supreme Court in their challenge to marijuana legalization in Colorado, Oklahoma and Nebraska are trying to join a couple of other anti-pot lawsuits that are now before a federal appeals court. This month Oklahoma Attorney General Scott Pruitt and Nebraska Attorney General Doug Peterson asked the U.S. Court of Appeals for the 10th Circuit to let them intervene in cases brought by Pueblo County landowners and Colorado sheriffs.

The landowners, Michael and Hope Reilly, filed suit under the Racketeer Influenced and Corrupt Organizations (RICO) Act in February 2015, arguing that a marijuana cultivation facility that Rocky Mountain Organics planned to open on a parcel near their horse ranch in Rye will spoil the view, ruin their peace of mind, and bring undesirable odors and visitors. Last January, U.S. District Judge Robert Blackburn ruled that the Reillys could not use RICO to sue Gov. John Hickenlooper or the other state and local officials they named in their complaint. That decision left in place the couple's claims against Rocky Mountain Organics, the company's insurer, its landlords, and the contractors who are building the cultivation facility and piping water to it. 

Six Colorado sheriffs, joined by four sheriffs from Nebraska and Kansas, sued Hickenlooper in March 2015, arguing that Amendment 64, which legalized marijuana in Colorado, violates the Controlled Substances Act (CSA) and therefore the Supremacy Clause (which makes congressional legislation "the supreme law of the land"). Last February, U.S. District Judge Wiley Daniel dismissed the lawsuit, ruling that neither the CSA, the Supremacy Clause, nor the international drug control treaties cited by the sheriffs authorize private causes of action.

In a lawsuit that the Supreme Court last month declined to hear, Pruitt and Peterson made arguments similar to the sheriffs', claiming that Colorado's regulation of marijuana suppliers violates federal law and harms their states by increasing opportunities for smuggling. Now they are trying to vindicate the interests they described in their lawsuit by joining the appeals filed by the sheriffs and the Reillys. "Because the people of Nebraska and Oklahoma have determined that marijuana is harmful and should be illegal," they say in their appeals court brief, "Nebraska and Oklahoma have a duty to protect their citizens from the continuing harms resulting from Colorado's illegal activities." They argue that there is "an imperative reason for intervention," because otherwise the 10th Circuit "may effectively decide Nebraska and Oklahoma's claim before it has the chance of being litigated in front of any court."




Ted Cruz Reiterates His Support for Marijuana Federalism

Mon, 11 Apr 2016 09:39:00 -0400

(image) In two interviews on Saturday, Ted Cruz reiterated his support for marijuana federalism. "Personally," he told the ABC station in Denver, "I would vote against marijuana legalization. If the state of Texas had a referendum on it, I would vote no. But I think it is the prerogative of the states to make that determination. I think the people of Colorado have the right to make the decision that they've made under the Constitution, and as president I would respect that right."

Talking to The Denver Post the same day, Cruz explained the practical advantages of letting states go their own way. "It is an opportunity for the rest of the country to see what happens here in Colorado, what happens in Washington state, see the states implement the policies," he said. "If it works well, other states may choose to follow. If it doesn't work well, other states may choose not to follow." He said it was too early to say how legalization is going in Colorado.

Those comments comport with what Cruz said at last year's Conservative Political Action Conference. "I actually think this is a great embodiment of what Supreme Court Justice Louis Brandeis called 'the laboratories of democracy,'" he told Fox News host Sean Hannity. "If the citizens of Colorado decide they want to go down that road, that's their prerogative. I personally don't agree with it, but that's their right." That marked a turnaround from Cruz's stance a year before, when he was complaining that the Obama administration had abdicated its responsibility to enforce the federal marijuana ban in states that had legalized the drug.

Most of the major-party presidential candidates (including all of those who remain in the race) agreed with Cruz that the feds should not interfere with marijuana legalization in states such as Colorado and Washington. The most vigorous dissenter from that position, Chris Christie, never scored higher than 5 percent in national polls. After quitting the race in February, Christie endorsed Donald Trump, who like Cruz says states should be free to legalize pot. 




Anti-Pot Oklahoma Legislator Celebrates the Death of His State's Anti-Pot Lawsuit

Fri, 01 Apr 2016 10:28:00 -0400

In a Tulsa World op-ed piece published yesterday, Oklahoma legislator Mike Ritze, a conservative Republican, celebrates the Supreme Court's refusal to hear his state's lawsuit challenging marijuana legalization in neighboring Colorado. Ritze, who represents Broken Arrow in Oklahoma's House, was one of seven state legislators who complained about the lawsuit in a December 2014 letter to Attorney General Scott Pruitt. Ritze says he "firmly" opposes marijuana legalization. But unlike Pruitt, an avowed federalist, Ritze takes the 10th Amendment and the doctrine of enumerated powers seriously: The lawsuit essentially claimed that because a federal statute and a few U.N. treaties ban marijuana, Colorado has no choice but to not only accept prohibition, but to help enforce it. But that's simply wrong. First of all, the U.S. Constitution does not delegate any power to the federal government in this area. That is why alcohol prohibition in 1920 necessitated a properly ratified constitutional amendment to be adopted at the federal level. If the U.S. Constitution does not delegate any powers to the feds in the area of marijuana prohibition, and it doesn't, Washington, D.C., has no business ratifying international treaties or passing federal statutes acting as if it possessed those powers. The U.S. Constitution only says statutes and treaties created in pursuance with the Constitution are the supreme law of the land. Any power grabs undertaken in defiance of that Constitution are mere usurpations that states have a duty to nullify.... Secondly, even if those U.N. treaties and federal statutes were constitutional, the U.S. Constitution does not allow the federal government to compel a state to criminalize something. Nor can the federal government commandeer state or local government resources in pursuit of its own policy agendas. Although Pruitt did not claim that the Supremacy Clause requires Colorado to recriminalize the cultivation, possession, and sale of marijuana, he argued that the state's licensing and regulation of commercial production and distribution conflicts with the Controlled Substances Act and harms Oklahoma because some Colorado cannabis ends up there. If he had gotten his way, the result could have been a free, unregulated market in marijuana, which libertarians might celebrate but pot prohibitionists like Pruitt presumably would not. Still, Ritze is right that Pruitt wanted the Supreme Court to override Colorado's laws because he thought they made it harder for Oklahoma and the federal government to enforce their bans on marijuana. Note that Ritze does not merely object that such an imposition would violate the state autonomy recognized by the 10th Amendment. He also argues (correctly) that the Constitution does not authorize Congress to ban marijuana to begin with, just as it did not authorize Congress to ban alcohol until the ratification of the 18th Amendment in 1919. In his 2014 letter to Pruitt, Ritze noted that the Controlled Substances Act rests on a reading of the power to regulate interstate commerce that the Supreme Court developed in the late 1930s and early '40s—a reading so broad that it allows Congress to do pretty much anything it wants, as long as it is not explicitly forbidden by the Constitution. Fair-weather federalists like Pruitt reject that understanding of the Commerce Clause in the context of Obamacare and other policies they do not like but embrace it when it's convenient.[...]



On Marijuana Legalization, Chris Matthews Sounds Dumber Than Donald Trump

Fri, 01 Apr 2016 07:30:00 -0400

(image) During his "town hall" with MSNBC's Chris Matthews on Wednesday, Donald Trump said "I'm getting some very negative reports" about the consequences of marijuana legalization in Colorado. He did not get more specific than that, except to suggest that "there's a lasting negative impact" if "you do too much of it."

Trump said something similar at the Conservative Political Action Conference last year, claiming that legalization has led to "some big problems" in Colorado. But he also said states should be free to legalize marijuana: "If they vote for it, they vote for it." Trump reiterated his support for marijuana federalism while campaigning in Nevada last October. "In terms of marijuana and legalization," he said, "I think that should be a state issue, state by state."

The dumbest comments about marijuana legalization on Wednesday actually came not from Trump but from Matthews:

What are the problems you've heard about Colorado? Because a lot of people wonder about who do you want smoking dope. I mean, do you want your train conductor, the bus driver, the airplane pilot? No. What do you want? Maybe the guy who teaches philosophy might be OK.

I mean—I mean does anybody trust anybody that's high to do anything? I mean, I'm serious about this....

Recreational drugs. What's that mean?

Matthews mentioned stoned train conductors, bus drivers, and airplane pilots but somehow left out stoned brain surgeons, another favorite prohibitionist trope. Like most drug warriors, he seems to think that if the government stops putting people in jail for growing, selling, and using marijuana, everyone will be high all the time. That expectation was clearly absurd even before any jurisdiction legalized marijuana (is everyone drunk all the time because alcohol prohibition was repealed?), and it's demonstrably false now. So contrary to what Matthews says, he is not at all serious about this.

Maybe this is one of the "very negative reports" Trump had in mind.

[via Westword]




SCOTUS Turns Away Oklahoma and Nebraska's Challenge to Legal Pot in Colorado

Mon, 21 Mar 2016 12:10:00 -0400

(image) Today the Supreme Court declined to hear Oklahoma and Nebraska's challenge to marijuana legalization in neighboring Colorado, which they say harms them through interstate smuggling. They argued that legalization in Colorado had "a direct and significant detrimental impact" on them by forcing "the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation." The Obama administration had urged the Court to reject Oklahoma and Nebraska's petition, saying their beef did not amount to a bona fide interstate controversy, since it grew out of lawbreaking that was neither directed nor approved by Colorado.

Oklahoma and Nebraska argued that Colorado's licensing, regulation, and taxation of marijuana growers and distributors violates the Controlled Substances Act (CSA) and therefore the Supremacy Clause, which makes federal statutes "the supreme law of the land." Colorado argued that it is acting well within the leeway that states enjoy under the Constitution and that its tolerance of heretofore criminal behavior does not create a "positive conflict" with federal law, as required for pre-emption under the CSA.

Justice Clarence Thomas, joined by Samuel Alito, dissented from the Court's decision not to hear the lawsuit. "The complaint, on its face, presents a 'controvers[y] between two or more States' that this Court alone has authority to adjudicate," he writes. "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."

Marijuana Majority's Tom Angell welcomed the Court's decision, saying it avoids what could have been "a dark shadow on the marijuana ballot measures voters will consider this November" by allowing states to "move forward with implementing voter-approved legalization laws even if their neighbors don't like it." He adds that "if officials in Nebraska and Oklahoma are upset about how much time and resources their police are spending on marijuana cases, as they said in their briefs, they should join Colorado in replacing prohibition with legalization."




Scalia on Drugs

Mon, 22 Feb 2016 00:01:00 -0500

In 1989 the U.S. Supreme Court upheld urine testing of applicants for Customs Service jobs that involved carrying a gun, handling classified material, or participating in drug interdiction. Justice Antonin Scalia dissented, calling the urinalysis program an "immolation of privacy and human dignity in symbolic opposition to drug use." Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced [would] be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity." Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected athletes at a public high school. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Scalia deemed the testing program reasonable, noting the importance of "deterring drug use by our Nation's schoolchildren." As those contrasting cases illustrate, Scalia was of two minds when confronted by the government's efforts to suppress consumption of arbitrarily proscribed intoxicants. The widely revered and reviled justice, who died on February 13, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her "Just Say No" campaign. During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a "drug-free society." While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think. For many years enforcement of drug prohibition has been the main factor undermining the Fourth Amendment's ban on "unreasonable searches and seizures." Scalia participated in that process, joining his colleagues in upholding invasive tactics such as flying low over private property in search of marijuana plants, searching bus passengers' bags based on consent that was clearly not freely given, and testing the urine of high school students participating in sports or any other extracurricular activities. But Scalia also resisted drug warriors' assaults on the Fourth Amendment. Writing for the majority in the 2001 case Kyllo v. United States, Scalia said police need a warrant to examine a house with infrared technology, looking for heat patterns indicative of indoor marijuana cultivation. In addition to evidence of illegal activity, he observed, such surveillance "might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider 'intimate.'" While "it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology," Scalia wrote, "the question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy….Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." In the 2012 case United States v. Jones, Scalia likewise concluded that police need a warrant to track the movements of a suspected cocaine dealer by attaching a GPS device to his car. "The Government physically occupied private property [i.e., the car] for the purpose of obtaining information," he wrote. "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment wh[...]



Scalia's Mixed Drug War Record

Thu, 18 Feb 2016 06:30:00 -0500

(image) For many years drug prohibition has been the main factor undermining the Fourth Amendment's ban on "unreasonable searches and seizures." In my latest Forbes column, I explore how Antonin Scalia, who died on Saturday, both assisted and resisted that process during his three decades on the Supreme Court:  

In 1989 the U.S. Supreme Court upheld urine testing of applicants for Customs Service jobs that involved carrying a gun, handling classified material, or participating in drug interdiction. Justice Antonin Scalia dissented, calling the urinalysis program an "immolation of privacy and human dignity in symbolic opposition to drug use." Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced [would] be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity."

Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected athletes at a public high school. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Scalia deemed the testing program reasonable, noting the importance of "deterring drug use by our Nation's schoolchildren."

As those contrasting cases suggest, Scalia was of two minds when confronted by the government's efforts to suppress consumption of arbitrarily proscribed intoxicants. The widely revered and reviled justice, who died on Saturday, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her "Just Say No" campaign. During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a "drug-free society." While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think.

Read the whole thing.




Which Presidential Candidates Would Tolerate Legal Pot?

Mon, 08 Feb 2016 00:01:00 -0500

With Rand Paul ending his campaign for the Republican presidential nomination, the GOP race has lost its strongest supporter of drug policy reform. But the remaining Republican candidates are for the most part not as retrograde in this area as you might expect, especially on the question of how the federal government should respond to state legalization of marijuana. For years Paul has been saying that drug policy should be devolved to the states as much as possible. In a Daily Show interview last month, the Kentucky senator made explicit one implication of that approach, joining Democratic presidential candidate Bernie Sanders in calling for an end to the federal ban on marijuana. Paul also has been an eloquent and passionate advocate of sentencing reform, sponsoring legislation that would effectively abolish mandatory minimums. Ted Cruz, who won the Iowa caucus on Monday and seems poised to finish second in the New Hampshire primary next Tuesday, is at best a pale imitation of Rand Paul. The Texas senator, who last spring bragged that he was an original cosponsor of a bill that would cut the mandatory minimums for drug offenses in half, seemed to turn against sentencing reform last fall, even while claiming he still wants to do something about "disproportionate sentences for nonviolent drug offenders."  Cruz also has reversed himself on marijuana legalization, but in that case he moved in a reformist direction. In 2014 he criticized the Obama administration for failing to aggressively enforce the federal ban on marijuana in the 23 states that have legalized the drug for medical or recreational use. A year later, he agreed with Paul that the feds should not interfere. "I actually think this is a great embodiment of what Supreme Court Justice Louis Brandeis called 'the laboratories of democracy,'" Cruz said at the Conservative Political Action Conference (CPAC) in February 2015. "If the citizens of Colorado decide they want to go down that road, that's their prerogative. I personally don't agree with it, but that's their right." Donald Trump, who finished second in Iowa and is leading the polls in New Hampshire by a wide margin, took a similar stance at CPAC. The billionaire developer and reality TV star, who in 1990 advocated legalization as the only way to win the war on drugs, said he opposes marijuana legalization, which has led to "some big problems" in Colorado. But when asked whether states should be free to legalize marijuana, he said, "If they vote for it, they vote for it." Trump reiterated his support for marijuana federalism while campaigning in Nevada last October. "In terms of marijuana and legalization," he said, "I think that should be a state issue, state by state." Marco Rubio, who finished just a point behind Trump in Iowa and could take second or third place in New Hampshire, has been less clear on the subject. In an interview with talk radio host Hugh Hewitt last April, the Florida senator said he was against marijuana legalization while conceding that "states have a right to do what they want." At the same time, he said, "they don't have a right to write federal policy," and "we need to enforce our federal laws." But the real question is how Rubio would enforce federal law. The Obama administration continues to prosecute people for marijuana offenses even in states that have legalized the drug for medical or recreational use. But its general policy is not to prosecute people who comply with state law. Would Rubio raid state-licensed marijuana businesses? He seems keen to avoid answering that question. Rubio came close in an ABC News interview last April. When th[...]



Marijuana Federalists Lead the Republican Field

Fri, 05 Feb 2016 07:00:00 -0500

(image) Chris Christie has made no bones about his intent to shut down marijuana legalization if he is elected president. But Republican voters do not seem to be attracted by Christie's cannabis combativeness. The New Jersey governor, who finished eighth in the Iowa caucus on Monday and may take sixth place in New Hampshire next Tuesday, has never scored higher than 5 percent in national polls. Meanwhile, as I explain in my latest Forbes column, most of the other Republican candidates, including the two at the top, have explicitly rejected the heavy-handed federal intervention Christie favors:

With Rand Paul ending his campaign for the Republican presidential nomination, the GOP race has lost its strongest supporter of drug policy reform. But the remaining Republican candidates are for the most part not as retrograde in this area as you might expect, especially on the question of how the federal government should respond to state legalization of marijuana.

Read the whole thing.




Nosy Neighbors Tell Colorado to Stop Regulating Pot

Mon, 18 Jan 2016 00:01:00 -0500

On January 6, two days before Mexican authorities recaptured Joaquín Guzmán Loera, a.k.a. El Chapo, Oklahoma Attorney General Scott Pruitt pointed to another drug lord, this one hiding in plain sight: John Hickenlooper, a.k.a. the governor of Colorado. "The State of Colorado authorizes, oversees, protects, and profits from a sprawling $100-million-per-month marijuana growing, processing, and retailing organization that exported thousands of pounds of marijuana to some 36 States in 2014," Pruitt writes in a Supreme Court brief joined by Nebraska Attorney General Douglas Peterson. "If this entity were based south of our border, the federal government would prosecute it as a drug cartel." Hickenlooper actually was a drug dealer of sorts before he got into politics, having cofounded Wynkoop Brewing Company, a Denver brewpub, in 1988. But he ended up running the drug trafficking organization described in Pruitt's brief by accident. He was elected governor two years before Colorado voters decided, against his advice, to legalize marijuana. Pruitt and Peterson are trying to overturn that result, claiming that it hurt Oklahoma and Nebraska by encouraging an influx of Colorado cannabis. Their argument shows how readily some conservative Republicans let their anti-pot prejudices override their federalist principles. Last month Solicitor General Donald Verrilli urged the Supreme Court not to hear Oklahoma and Nebraska's challenge to marijuana legalization in Colorado. "Entertaining the type of dispute at issue here—essentially that one state's laws make it more likely that third parties will violate federal and state law in another state—would represent a substantial and unwarranted expansion of this court's original jurisdiction," Verrilli writes. Federal law gives the Supreme Court "original and exclusive jurisdiction of all controversies between two or more States." Verrilli rejects Oklahoma and Nebraska's contention that the illegal smuggling of Colorado cannabis creates an interstate controversy:  Where the plaintiff State does not allege that the defendant State has "confirmed or authorized" the injury-inflicting action, there does not exist a "controversy" between the States appropriate for initial resolution under this Court's exclusive original jurisdiction….This case does not satisfy the direct-injury requirement. Nebraska and Oklahoma essentially contend that Colorado's authorization of licensed intrastate marijuana production and distribution increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those states. But they do not allege that Colorado has directed or authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible. In last week's brief, Pruitt disagrees, likening marijuana produced and sold by Colorado-licensed businesses to air pollution that ineluctably wafts across the borders of other states. "Nebraska and Oklahoma can no more prevent Colorado's marijuana from crossing its borders than it can prevent its winds from blowing and rivers from flowing," he writes. Even while conceding the futility of prohibition, Oklahoma and Nebraska demand more of it, arguing that Colorado should be forced to assist their vain effort to prevent people from getting high by changing its laws. Since it is beyond dispute that states have no obligation to punish every act that Congress decides to treat as a crime, Oklahoma and Nebraska are not asking Colorado to recriminalize production, possession, and distribution of marijuana. But they argue that [...]



Rand Paul Says Pot Prohibition Should Be Repealed

Fri, 15 Jan 2016 09:31:00 -0500

(image) In his interview with The Daily Show's Trevor Noah last night, Rand Paul made his clearest public statement yet calling for an end to federal marijuana prohibition:

Noah: If Rand Paul was president, would it be illegal to smoke weed?

Paul: Not federally, and I think states would make up their minds. So for instance, Colorado right now has decided that it's not illegal. I think that's completely Colorado's purview. There shouldn't be federal laws against most things. In fact, when we started the country, we had laws against counterfeiting, against treason, and against piracy....

Whether or not Colorado decides to legalize marijuana really is their business, and there's no real reason to have a federal rule on that....States will develop different experiments or proclivities. Colorado might have it, but maybe Alabama is not going to have it. The good thing about it is it allows us to have a little bit different cultural norms in different parts of the country.

For years Paul has been saying that drug policy should be devolved to the states as much has possible and that states should be free to decide whether to legalize marijuana. Although repealing the federal ban is a logical implication of those positions, as far as I know this is the first time the Kentucky senator has explicitly endorsed that step. 

So far Bernie Sanders' Ending Federal Marijuana Prohibition Act, the first bill of its kind in the Senate, has no cosponsors. Maybe Paul will be the first.

Paul's position is actually more radical than Sanders', since he seems to be saying (as his father does) that neither marijuana nor any other drug should be prohibited at the federal level. And that's just for starters. "There shouldn't be federal laws against most things" covers a lot of territory.




Anti-Legalization Lawsuit Shows Conservative Constitutionalists Have Marijuana-Related Memory Loss

Fri, 15 Jan 2016 08:16:00 -0500

(image) Last month the Obama administration urged the Supreme Court not to hear Oklahoma and Nebraska's lawsuit challenging marijuana legalization in Colorado, saying their complaints about cannabis coming over the border do not constitute a genuine interstate controversy. Last week Oklahoma and Nebraska responded, likening legal marijuana to state-authorized air pollution that ineluctably wafts onto their territory. In my latest Forbes column, I explain why the two pot-phobic states are wrong in thinking they have a right to impose their policy preferences on their neighbor:

Last week, two days before Mexican authorities recaptured Joaquín Guzmán Loera, a.k.a. El Chapo, Oklahoma Attorney General Scott Pruitt pointed to another drug lord, this one hiding in plain sight: John Hickenlooper, a.k.a. the governor of Colorado. "The State of Colorado authorizes, oversees, protects, and profits from a sprawling $100-million-per-month marijuana growing, processing, and retailing organization that exported thousands of pounds of marijuana to some 36 States in 2014," Pruitt writes in a Supreme Court brief joined by Nebraska Attorney General Douglas Peterson. "If this entity were based south of our border, the federal government would prosecute it as a drug cartel."

Hickenlooper actually was a drug dealer of sorts before he got into politics, having cofounded Wynkoop Brewing Company, a Denver brewpub, in 1988. But he ended up running the drug trafficking organization described in Pruitt's brief by accident. He was elected governor two years before Colorado voters decided, against his advice, to legalize marijuana. Pruitt and Peterson are trying to overturn that result, claiming that it hurt Oklahoma and Nebraska by encouraging an influx of Colorado cannabis. Their argument shows how readily some conservative Republicans let their anti-pot prejudices override their federalist principles.

Read the whole thing.




How Do You Like Greg Abbott's New, Improved Constitution?

Tue, 12 Jan 2016 09:35:00 -0500

Last week Texas Gov. Greg Abbott proposed nine constitutional amendments "to restore the rule of law." I am not convinced that all of them would have that effect, but there is some good stuff in there, from both a constitutionalist and a libertarian perspective. I particularly like Abbott's first idea: an amendment that would "prohibit Congress from regulating activity that occurs wholly within one State," which promises to restore the original understanding of the federal government's power to regulate interstate commerce. To be a fit subject of federal legislation under that power, Abbott argues in a 92-page position statement that draws heavily on the work of libertarian law professor Randy Barnett, an activity should be both "interstate" and "commerce" (meaning the trade or exchange of goods). Instead the Supreme Court has transformed the Commerce Clause into a license for pretty much anything Congress wants to do, as long as it is arguably related in some way to the national economy. Among other things, the Court has ruled that the Commerce Clause authorizes the federal government to punish a farmer for growing wheat for his own use on his own land and to seize homegrown marijuana from patients who use it to treat their symptoms, even when such use is permitted by state law. "What constitutional provision conceivably could allow federal agents to raid a home and destroy plants that were planted, grown, and consumed inside the borders of one State and in accordance with that State's law?" Abbott asks. Although he does not say so explicitly, the upshot of his argument is that federal prohibition—not just of marijuana but of cocaine, heroin, LSD, lawn darts, "assault weapons," or "partial birth" abortion—is unconstitutional insofar as it extends to purely intrastate activity. Abbott also wants to "restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution." Since the Supreme Court already supposedly follows that rule, I'm not sure how effective saying it again would be. The problem is that, as with the Commerce Clause, the Court has stretched the scope of those expressly delegated powers beyond all recognition. Partly in response to that danger, Abbott suggests an amendment that would "allow a two-thirds majority of the States to override a U.S. Supreme Court decision." His proposed requirements for overturning a Supreme Court decision would be significantly easier to meet than the requirements for amending the Constitution. From a libertarian perspective, that "safeguard" could easily create more problems than it would solve, allowing a tyrannical majority to run roughshod over individual rights. It is hardly reassuring that two of Abbott's examples of jurisprudence that needs to be democratically reversed involve protecting freedom of speech and imposing a (mostly ineffectual) proportionality requirement on criminal punishment. The third example is the Court's endorsement of using eminent domain to transfer property from one private owner to another, which was both antilibertarian and genuinely unpopular. I see similar problems with Abbott's proposal to "require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law." Decisions that would have been invalid under that requirement include important rulings protecting freedom of speech, the right to arms, property rights, and even the federalist principles that Abbott wants to uphold. If the Court cannot make the Constitution stick in cases like these, who will?[...]