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Published: Sun, 23 Apr 2017 00:00:00 -0400

Last Build Date: Sun, 23 Apr 2017 23:36:41 -0400


Sessions-Shy Colorado Legislators Gut Bill Authorizing Cannabis Consumption Clubs

Fri, 14 Apr 2017 11:10:00 -0400

If cannabis consumers in Colorado continue to have trouble finding places outside their homes where they can legally enjoy the marijuana they can legally buy, they can thank Attorney General Jeff Sessions. Yesterday Collorado legislators gutted a broadly supported bill that would have authorized cannabis consumption clubs, citing uncertainty about how a Justice Department run by an old-style pot prohibitionist might respond. Amendment 64, the 2012 ballot initiative that made Colorado the first state to legalize marijuana for recreational use, allows adults 21 and older to smoke, vape, eat, or drink cannabis products at home. But Amendment 64 does not apply to "consumption that is conducted openly and publicly," which remains a petty offense punishable by a $100 fine. Because the meaning of "openly and publicly" is a matter of dispute, consuming cannabis outside of private residences remains legally perilous in many jurisdictions. Denver, for example, has a bunch of businesses where you can legally buy marijuana but none where you can legally use it. S.B. 184, introduced by Rep. Dan Pabon (D-Denver) and Sen. Bob Gardner (R-Colorado Springs), defined "openly and publicly" to exclude consumption on private property that is shielded from public view or to which access is restricted. The bill, which was approved by the state Senate last month and was on the verge of approval in the House, would have let people bring their own marijuana to use inside members-only clubs except where prohibited by local law. The clubs would have been forbidden to sell marijuana, alcohol, or food aside from light snacks. Gov. John Hickenlooper had threatened to veto S.B. 184, partly because he views it as contrary to voters' intent in passing Amendment 64 and partly because he did not want to provoke Sessions, who has repeatedly criticized marijuana legalization and suggested he will crank up enforcement of the federal ban. "It was explicit in [Amendment 64] that it would not be for public consumption," Hickenlooper told The Denver Post last month. "So I'm just trying to defend the will of the voters." In an earlier interview with the Post, he also cited the risk of federal intervention. "Given the uncertainty in Washington, this is not the time to be…trying to carve off new turf and expand markets and make dramatic statements about marijuana," he said. "The federal government can [wield] a pretty heavy hand on this, and I think we should be doing everything we can to demonstrate…we are being responsible in how we implement the will of our voters." Yesterday S.B. 184 was amended to eliminate the language authorizing "marijuana membership clubs" and to broaden the definiton of "openly and publicly," which now covers any "place to which the public or a substantial number of the public has access." But the revised bill authorizes local governments to allow "marijuana consumption locations" as long as "the locations are not accessible to the public or a substantial number of the public without restriction, including, but not limited to, restrictions on the age of the members of the public who are allowed access to such location." In other words, the bill would explicitly allow what some jurisdictions have already decided to do: permit cannabis consumption in restricted-access locations, as a local ballot initiative approved by Denver voters in November is supposed to do. "I'd like to see [a bill] that goes much further, and that does a lot more," Rep. Jonathan Singer (D-Longmont) told the Associated Press. "But in a year with Jeff Sessions, a small first step is better than no step at all." Sen. Tim Neville (R-Boulder), who sponsored a competing bill that would have allowed on-site consumption in businesses that sell marijuana, disagreed with the retreat. "It only makes sense to allow people to have a place to where they can [use marijuana] where it's controlled and confined," he said. "We have legalized marijuana. Where do we want people to use it if not at home? On the street?" As Neville's question suggests, the lack of legally approved locati[...]

Trump Adviser Urges Him to Keep Sessions From Harassing State-Legal Pot Suppliers

Mon, 03 Apr 2017 07:00:00 -0400

(image) Roger Stone, the longtime Republican operative and adviser to Donald Trump, is publicly urging the president to reject Attorney General Jeff Sessions' "outmoded thinking on marijuana" and keep him from harassing state-licensed cannabusinesses. In a recent blog post, Stone, a self-described libertarian, reminds Trump that as a presidential candidate he repeatedly said marijuana legalization should be left to the states.

"Tens of millions of Liberty minded Americans believed him when he said this and took his message to heart, fully expecting him to end the ineffectual and wasteful War on Weed," Stone writes. "I urge President Trump to honor his word and keep his promise, irrespective of what his Cabinet members may say. There are so many other ways that law enforcement can be put to good use rather than to persecute harmless farmers and shopkeepers who are abiding by State law."

Stone says Sessions' anti-pot prejudices should not dictate federal policy. "As a product of the Religious South, it is natural that AG Sessions would take the dimmest view of marijuana," he writes. "Jeff Sessions states his position plainly: 'Good people don't smoke marijuana.' This plainly false statement, made in all earnestness, clearly demonstrates how far from the mainstream Sessions is on this topic. Very few Americans would agree with him on this, as evidenced in the wave of legalization that washed over the United States over the past five years."

In addition to "states rights," Stone marshals support from the Bible, wherein God gives humans "every seed-bearing plant on the face of the whole earth and every tree that has fruit with seed in it...for food," and Thomas Jefferson, who remarked that "was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now." Stone argues that "marijuana prohibition laws...were formulated as a tool to bludgeon both the poor and minorities" and notes that legalization enjoys broad popular support, especially in states where voters have approved it through ballot initiatives.

"This was clearly the Will of the People," Stone says. "It is not Jeff Sessions' place to prosecute his version of morality and President Trump should not allow him to do so."

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Another Compromise to Dump N.C.’s Transgender Bathroom Panic Law Draws Criticism (UPDATE: Governor Signs into Law)

Thu, 30 Mar 2017 11:35:00 -0400

There's a new compromise to try to get rid of North Carolina's controversial bathroom-panic-inspired legislation, but it doesn't actually seem like much of a compromise, and it's not clear whether it's going to get anywhere. To recap: North Carolina's legislature, supported by its now-ousted Republican governor, passed HB2 a year ago. The law requires that people on government property (particularly public schools) use facilities (like restrooms and locker rooms) of the sex listed on their birth certificates. That's the part of the law that got the most attention. HB2 also blocked cities from passing their own ordinances that added new protection categories to antidiscrimination and public accommodation laws or from having higher minimum wages than what the state defines. North Carolina does not have state-level discrimination protections on the basis of sexual orientation or gender identity. Charlotte passed a law adding these protections and also requiring that transgender people be accommodated in the facilities of the sex they've chosen. The backlash over HB2 has resulted in business boycotts against the state and likely helped contributed to the defeat of its governor in November. But while the law has invoked a lot of ire and resulted in a Democrat taking control of the governor's office, the state is struggling to figure out what to do about it. An attempted compromise in December crashed and burned, and it might happen again with what has been hammered out and released in North Carolina this week. Republican legislators are offering to rescind HB2 if the state passes a new, stripped down bill in its place, HB142. This bill does not include the text that controls what public facilities transgender people may use. And it doesn't tell cities they can't jack up their minimum wages. But what HB142 does keep in place is the rule that cities and counties cannot pass their own laws that add to discrimination or public accommodation laws (this component sunsets in 2020), nor can they set their own rules for gender-based access to government and school building facilities. So the compromise here is the state telling cities that they can't meddle with their own discrimination laws, but the state still can. So technically the legislation could immediately resurrect the restrictions they put into place with HB 2 even after if they strike the law down. As such, the response to the compromise from LGBT groups has been a bit cool, to say the least. From the Washington Post: Gay rights groups said the new bill's other elements, including the prohibition on local governments passing their own nondiscrimination ordinances, meant that it fell short of a full repeal, and they forcefully condemned the deal late Wednesday and early Thursday. "This proposal is a train wreck that would double down on anti-LGBTQ discrimination. North Carolinians want a clean repeal of HB2, and we urge our allies not to sell us out," Chris Sgro, executive director of Equality NC, said in a statement. "Those who stand for equality and with LGBTQ people are standing strong against these antics." The American Civil Liberties Union has been vocally opposing the compromise as well. I've been on the record that I am not fond of states telling cities what kind of laws they can and cannot pass, even if I don't support such laws. I'd much rather states turn to the courts to have municipal laws struck down if they violate freedoms and rights recognized by state constitutions. (Read down toward the bottom of this blog post where I flesh out my concerns.) I got a little bit of a different perspective on state vs. city rule-making during my visit to South by Southwest in Austin, Texas. In Austin, the city has used an oppressive fingerprinting law to control who may work in ride-sharing services like Lyft and Uber. As a result, the two companies have left the market (which apparently led to some disastrous experiences for visitors to the city). At a criminal justice reform panel held at the offices of the Texas P[...]

Jeff Sessions' Praise for the Cole Marijuana Memo Is Not a Promise of Restraint

Thu, 16 Mar 2017 12:59:00 -0400

Although it is obvious that Jeff Sessions does not like pot, it is still unclear how that attitude will affect his work as attorney general, nothwithstanding his statement yesterday that the Justice Department's policy regarding state-licensed marijuana suppliers during the Obama administration was largely "valid." Sessions was referring to the 2013 memo in which James Cole, then the deputy attorney general, suggested that such businesses needn't worry about federal prosecution or asset forfeiture as long as they complied with state law and did not impinge upon federal "enforcement priorities." But the Cole memo is highly ambiguous and elastic, so Sessions' semi-endorsement of it should not be read to mean that he has no plans to crack down on the cannabis industry in the eight states that have legalized the drug for recreational use. "The Cole memorandum set up some policies under President Obama's Department of Justice about how cases should be selected in those states and what would be appropriate for federal prosecution, much of which I think is valid," Sessions told reporters after a speech in Richmond. He added that he "may have some different ideas myself in addition to that" but noted that the Justice Department does not have the resources to take over enforcement of marijuana prohibition from police and prosecutors in states that have opted out of it. "We're not able to go into a state and pick up the work that the police and sheriffs have been doing for decades," he said. The Huffington Post portrays Sessions' comments as reassuring. Under the headline "Jeff Sessions Suggests a Crackdown Isn't Coming for Legal Weed," reporter Matt Ferner says, "Attorney General Jeff Sessions hates marijuana, but it appears unlikely that he'll send the federal government to war against states that have legalized it." Yet what Sessions said yesterday is essentially the same as what he said at his confirmation hearing in January, where he described "some" of Cole's criteria as "truly valuable in evaluating cases." He tellingly added that "the criticism I think that was legitimate is that they may not have been followed." The Justice Department's failure to properly implement the Cole memo was the theme of the April 2016 Senate hearing at which Sessions said "the Department of Justice needs to be clear" that "marijuana is not the kind of thing that ought to be legalized." The title of the hearing, which was held by the Senate Caucus on International Narcotics Control, asked, "Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?" Sessions clearly did not think it was. Cole listed eight enforcement priorities, including prevention of interstate smuggling, distribution to minors, and "adverse public health consequences related to marijuana use." Any one of them could easily be cited as a rationale for seriously disrupting the newly legal cannabis industry, if not shutting it down entirely. U.S. attorneys could wreak havoc simply by sending threatening letters to state-licensed cannabusinesses, their landlords, or anyone else who facilitates their federal felonies. The DOJ also could challenge state licensing systems in federal court, arguing that giving an official stamp of approval to marijuana suppliers violates the Controlled Substances Act. Nothing Sessions has said precludes any of that. It all comes down to his interpretation of the Cole memo, which made no promises and left federal prosecutors lots of leeway to target state-legal marijuana businesses.[...]

Obamacare Repeal Bill Gets Chilly Reception From GOP Governors, Despite Including Key Medicaid Changes They Wanted

Wed, 08 Mar 2017 13:02:00 -0500

It's telling that even Republican governors are not exactly thrilled with the Obamacare repeal-and-replace bill unveiled this week by House GOP leaders—despite the fact that those governors played a role in crafting the bill, which includes one of their major requests for changing how Medicaid costs are handled. On a day full of chilly receptions for the repeal-and-replace proposal, Wisconsin Gov. Scott Walker issued one of the few semi-warm welcomes. In a statement released Tuesday, Walker said the GOP health care bill was "an important first step" but called for more work to be done. "Medicaid reforms in @HouseGOP plan send power back to the states," he later tweeted, highlighting what many Republican governors see as a crucial reform. Some of his fellow GOP governors were less impressed. "Right now I am very, very discouraged and disappointed with what House Republicans are introducing," Maine Gov. Paul LePage said told radio station WVOM on Tuesday, when asked about the health care bill. "We don't know what the cost is, but based on what I see and I'm reading and what has happened over the last 15 years, I don't think it's an improvement. I think we're punting the ball, is what we're doing." In Illinois, Gov. Bruce Rauner, another Republican, said his state "won't do very well under the changes they're recommending," according to the Associated Press. "I support changing [the Affordable Care Act] but we've got to be thoughtful about it," Rauner said. The Affordable Care Act is a federal law, of course, but any effort to change or repeal it will impact state budgets in significant ways, mostly because of the joint federal-state funding process for Medicaid, which provides health insurance for the poor. Getting Republican governors on-board with the repeal-and-replace plan is essential, which is why the White House hosted several governors in late February for meeting with President Donald Trump. "At the end of the day, it's the governors and the states who are going to be implementing this program, so we want to have a big voice in this because we're going to be responsible for actually carrying it out," Nebraska Gov. Pete Ricketts told Fox News last week after meeting with President Trump. "We know best what will work in our states, let us do it. Frankly, what will work in Nebraska may not work in New Jersey." The proposal unveiled Monday included one major Medicaid policy change intended to give states more flexibility and better control over health care costs. Under the House GOP proposal, states will get a per capita allotment of federal Medicaid dollars—a pre-set amount of money per person, multiplied by the number of enrollees in the system each year (perhaps with bonuses for more expensive groups like the elderly or people with disabilities). The amount of money would rise and fall with the state-level enrollment figures, but states would be left to decide how best to spend the overall pot of federal cash. This functions more-or-less like a so-called "block grant," which has been a staple of Republican Medicaid reform plans for years, but with a little twist. Because some states chose to expand Medicaid under the ACA and some didn't, this per capita approach doesn't specifically reward or punish either option. States with larger Medicaid populations—like those that accepted expansion—will get a larger share of federal cash, but everyone will get the same amount on a per capita basis. There's also a provision to make a one-time payment of $2 billion to states that did not expand Medicaid, meant to smooth out non-expansion states' worry that they would be shortchanged by future funding formulas. In either case, this represents a major shift in the way the Medicaid is funded by the federal government to the states—exactly the kind of fundamental change that many governors were asking for behind closed doors. "We should give our state governors the resources and flexibly that they need to make sur[...]

Senators Urge Sessions to Keep Trump's Promise of Marijuana Federalism

Fri, 03 Mar 2017 07:00:00 -0500

Yesterday 11 senators sent Attorney General Jeff Sessions a letter expressing concern about recent statements suggesting he plans to enforce the federal ban on marijuana against state-licensed businesses that serve recreational cannabis consumers. The senators, all of whom represent states that have legalized marijuana for medical or recreational use, urged Sessions to stick with the Obama administration's policy of leaving those businesses alone as long as their activities do not implicate the federal "enforcement priorities" listed in a 2013 memo from James Cole, then the deputy attorney general. "On the campaign trail, then-candidate Trump stated that despite his personal views regarding marijuana use, legalization should be left to the states," note Sen. Elizabeth Warren (D-Mass.), Sen. Lisa Murkowski (R-Alaska), and nine of their colleagues. "It is essential that states that have implemented any type of practical, effective marijuana policy receive immediate assurance from the DOJ that it will respect the ability of states to enforce thoughtful, sensible drug policies in ways that do not threaten the public's health and safety....We believe that the Cole Memorandum provides a strong framework for effectively utilizing the DOJ's resources and balancing the law enforcement roles of the federal government and the states." Two Republican senators, meanwhile, say Sessions gave them the impression that he would not try to shut down the cannabis industry in Colorado, Washington, Oregon, Alaska, or the four states where voters approved legalization last November. "He told me he would have some respect for states' rights on these things," Sen. Rand Paul (R-Ky.) told Politico, "so I'll be very unhappy if the federal government decides to go into Colorado and Washington and all of these places." Sen. Cory Gardner (R-Colo.) said he did not get the sense from administration officials that Sessions plans a big shift in policy. "Nothing at this point has changed," Gardner told Politico. On Meet the Press last Sunday, Colorado Gov. John Hickenlooper, a Democrat, said Sessions, prior to his confirmation, told Gardner marijuana enforcement "wasn't worth rising to the top and becoming a priority." According to a Justice Department spokesman contacted by Politico, "the department's current policy is reflected in the 2013 Cole memo." These assurance are not exactly rock solid, especially since the Cole memo leaves a lot of leeway to crack down on state-legal marijuana suppliers, depending on how the federal enforcement priorities are interpreted. Yet both Politico and the New York Post make it seem as if opponents of marijuana prohibition overreacted to White House Press Secretary Sean Spicer's prediction of "greater enforcement" and Sessions' criticism of legalization, which he coupled with a pointed reminder that "it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not." The headline over the Politico story is "Sessions Reassures Senators: No Pot Crackdown Imminent," which overstates what they say he said. "Some respect for states' rights" does not rule out more enforcement, and neither does the impression that "nothing at this point has changed." Politico's subhead says "worries about a shift in federal enforcement in states that have legalized recreational use may be overblown." Then again, they may not. And here is reporter Burgess Everett's lead: "The Trump administration is causing serious paranoia among marijuana advocates with its hints of a federal crackdown on recreational use." That sentence is doubly dismissive, since paranoia implies that fears of a crackdown are irrational while alluding to one of marijuana's reputed effects. And why "marijuana advocates"? Were opponents of alcohol prohibition "booze boosters"? The Post's headline, "Sessions Hints That Feds Won't Be Cracking Down on Pot Use," more ac[...]

The Federal Ban on Sports Betting Is Unfair, Unnecessary, and Unconstitutional

Thu, 02 Mar 2017 07:00:00 -0500

This month Americans are expected to bet something like $9 billion on the NCAA men's basketball tournament, almost all of it through illegal channels. That's because federal law prohibits wagering on sporting events everywhere except Nevada, which was grandfathered by the Professional and Amateur Sports Protection Act of 1992. (PASPA also allows pre-existing sports lotteries in Delaware and Oregon, but those are limited to NFL games.) All told, Americans may bet as much as $400 billion a year on sports, and nearly all of those wagers are illegal, whether they happen in office pools or on websites run by offshore companies. Although criminalizing such a common and generally innocuous activity strikes libertarians as self-evidently insane, the general public is not so sure. Last year a Fairleigh Dickinson University poll found that only 48 percent of Americans supported "changing the law to allow people to place bets on sports in all states." (By comparsion, Gallup puts support for marijuana legalization at 60 percent.) Another 2016 poll, by Seton Hall University, phrased the question differently, asking whether "states should be free to decide whether to legalize betting on sporting events." That policy garnered support from 68 percent of respondents. A third poll from last year, by the Mellman Group, combined the two questions and found that 22 percent of respondents thought "sports betting should be legal nationwide," while 58 percent thought "each state should be able to decide whether or not sports betting should be legal within its borders." In other words, 80 percent opposed the current federal policy of preventing states from legalizing sports betting. As Steven Titch and Michelle Minton note in a new paper from the Competitive Enterprise Institute, even professional sports leagues, which have long opposed letting people legally bet on their games, are starting to come around. In 2014 National Basketball Association Commissioner Adam Silver wrote a New York Times op-ed piece arguing that "sports betting should be brought out of the underground and into the sunlight where it can be appropriately monitored and regulated." In 2015 Major League Baseball Commissioner Rob Manfred told ESPN legalization of sports betting deserves "fresh consideration." One of the most common objections to legal sports betting, especially from the professional leagues and the NCAA, is that it will have a corrupting effect, encouraging bribery of players or officials to change outcomes or shave points. That concern, Titch and Minton argue, is misguided, since legal, transparent betting makes corruption easier to detect. They cite several cases, including the "Black Sox" scandal of 1919, where sudden shifts in betting odds revealed behind-the-scenes manipulation. "By criminalizing sports betting, PASPA actually increases the risks of match-fixing and corruption," Titch and Minton write. "In Europe and much of the world where sports betting is legal, bookies are incentivized to share with authorities odd betting patterns that might signal corruption....By contrast, in the U.S., the law disincentivizes gamblers from alerting authorities to suspicious betting that might indicate match fixing, lest they open themselves up to investigation." Opponents of legal sports betting also worry it will foster gambling addiction. That was the top concern for the people who opposed legalization in the Fairleigh Dickinson poll, cited by 55 percent of them. Aside from the moral questions raised by the "addict's veto," which justifies banning pleasures that are generally harmless because sometimes they aren't, there is the practical question of whether prohibition actually reduces problem gambling. That's a dubious proposition given that Americans are betting hundreds of billions a year on sports despite the ban, especially since the gamblers who are the most inclined to excess are probably the leas[...]

The Marijuana Exception to Federalism

Wed, 01 Mar 2017 00:01:00 -0500

Last week White House Press Secretary Sean Spicer predicted "greater enforcement" of the federal ban on marijuana in the eight states that have legalized the drug for recreational use. This week Attorney General Jeff Sessions, an old-fashioned drug warrior who thinks "good people don't smoke marijuana," seemed to confirm Spicer's warning, telling reporters, "We're going to look at it...and try to adopt responsible policies." If those "responsible policies" involve legal action aimed at shutting down state-licensed marijuana businesses, they will be contrary to public opinion, President Trump's campaign promises, and Sessions' own avowed support for federalism. As most Republicans seem to recognize, attempts to force marijuana prohibition on states that have opted out of it are inconsistent with the decentralized system of government established by the Constitution. According to a recent Quinnipiac University survey, 59 percent of Americans think marijuana "should be made legal in the United States," while 71 percent "oppose the government enforcing federal laws against marijuana in states that have already legalized medical or recreational marijuana." Among Republicans, only 35 percent favored legalization, but 55 percent opposed federal interference with it. Last April a CBS News poll found even stronger Republican opposition to federal meddling. Asked if "laws regarding whether the use of marijuana is legal" should be "determined by the federal government" or "left to each individual state government to decide," 70 percent of Republicans said the latter, compared to 55 percent of Democrats (who as usual were more likely to favor legalization). These results suggest many conservatives, whatever they think of marijuana, take seriously their commitment to federalism, which Trump also claims to support. At the Conservative Political Action Conference in 2015, Trump said he favored medical marijuana but had concerns about broader legalization, a decision he nevertheless said should be left to the states. "In terms of marijuana and legalization," he said at a 2015 rally in Nevada, "I think that should be a state issue, state by state." Sessions, a former Alabama senator, also claims to believe in federalism. After the death of William Rehnquist in 2005, Sessions gave a floor speech in which he praised the chief justice for "reestablish[ing] a respect for state law and state sovereignty." Sessions noted that the federal government, under its authority to regulate interstate commerce, "has broad power, but there are limits to the reach of the Commerce Clause." When it comes to marijuana, however, Sessions has little patience for those limits. "It does remain a violation of federal law to distribute marijuana throughout any place in the United States," he observed on Monday, "whether a state legalizes it or not." In 2005 the Supreme Court upheld continued enforcement of the federal ban on marijuana in states that have legalized the drug. But the Court did so based on a very broad reading of the Commerce Clause—the sort of interpretation that usually irks conservative constitutionalists. The case involved homegrown marijuana used by patients in states that recognize the plant as a medicine. "If Congress can regulate this under the Commerce Clause," observed dissenting Justice Clarence Thomas, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers." In relying on an understanding of the Commerce Clause that lets Congress do pretty much whatever it wants, Sessions outdoes one of the most famous anti-marijuana crusaders in U.S. history. Harry Anslinger, head of the Federal Bureau of Narcotics from 1930 to 1962, pushed states to ban marijuana by claiming the plant turned people into rapists and murderers. But even Anslinger did not go so far as to claim the federal government ha[...]

Jeff Sessions Provides More Evidence That He Plans a Marijuana Crackdown

Tue, 28 Feb 2017 07:00:00 -0500

In comments to reporters yesterday, Attorney General Jeff Sessions provided more reason to worry that a crackdown on state-licensed marijuana businesses is in the offing. "I'm definitely not a fan of expanded use of marijuana," said Sessions, an old-fashioned drug warrior who thinks "good people don't smoke marijuana." While states "can pass the laws they choose," he added, "I would just say it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not." Sessions gave little indication of the extent to which he plans to enforce that law, except to say that "we're going to look at it...and try to adopt responsible policies." But he expressed sympathy for states such as Nebraska that complain about an influx of marijuana from states where it is legal and worried about rising potency. "Current levels of THC in marijuana are very high compared to what they were a few years ago, and we're seeing real violence around that," he said. "Experts are telling me there's more violence around marijuana than one would think, and there's big money involved." While it sounded like Sessions was harking back to Harry Anslinger's "reefer madness" campaign against marijuana by blaming violence on the pharmacological effects of super-potent pot, it seems the attorney general is more worried about the "big money involved" in the marijuana trade. "You can't sue somebody for a drug debt," he said. "The only way to get your money is through strong-arm tactics, and violence tends to follow that." If Sessions' main concern is the violence that occurs when marijuana suppliers have no legal way to resolve disputes, of course, he should welcome the peace brought by legalization. "By talking about marijuana and violence," observes Marijuana Majority Chairman Tom Angell, "the attorney general is inadvertently articulating the strongest argument that exists for legalization, which is that it allows regulated markets in a way that prohibition does not. The only connection between marijuana and violence is the one that exists when illegal sellers battle it out for profits in the black market." Assuming that Sessions' plans include "greater enforcement" of the federal ban on marijuana, as White House Press Secretary Sean Spicer suggested last week, it could take several forms. Sessions could easily disavow the Justice Department's policy of prosecutorial forbearance, which was laid out in a 2013 memo from James Cole, then the deputy attorney general. But even without renouncing the Cole memo, Sessions could seriously disrupt or cripple the cannabis industry in states such as Colorado and Washington by taking a broader view of the federal "enforcement priorities" Cole listed. Those priorities include preventing violence and interstate smuggling, both issues that Sessions raised yesterday. The priorities also include preventing distribution to minors and minimizing "adverse public health consequences related to marijuana use," a potentially unlimited license for federal meddling. Yesterday Sessions also alluded to those rationales for intervention. "Most of you probably know I don't think America is going to be a better place when more people of all ages, and particularly young people, start smoking pot," he said. "I believe it's an unhealthy practice." During his confirmation hearing last month, Sessions conceded that enforcing the federal ban on marijuana is "a problem of resources for the federal government" and said "some" of Cole's criteria "are truly valuable in evaluating cases." But he added that "the criticism I think that was legitimate is that they may not have been followed." In fact, that was the theme of the April 2016 Senate hearing at which Sessions said "the Department of Justice needs to be clear" that "marijuana is not the kind of thing that ou[...]

Colorado's Governor, Who Opposed Pot Legalization in 2012, Is Ready to Defend It

Mon, 27 Feb 2017 07:30:00 -0500

(image) Two years ago today, during his appearance at the 2015 Conservative Political Action Conference, Donald Trump said states should be free to legalize marijuana, but he also said, "I think it's bad, and I feel strongly about it." He added, "They've got a lot of problems going on right now in Colorado, some big problems." Colorado Gov. John Hickenlooper, who opposed legalization in 2012, disagrees with Trump's impression of the consequences. The president, whose press secretary last week predicted "greater enforcement" of the federal ban on marijuana in the eight states that have legalized the drug for recreational use, may be interested in what Hickenlooper had to say in an interview with Chuck Todd on Meet the Press yesterday:

Todd: If this were put on a ballot today, I know you opposed it before, but if it were put on a ballot today, would you now support it?

Hickenlooper: Well, I'm getting close. I mean, I don't think I'm quite there yet, but we have made a lot of progress. We didn't see a spike in teenage use. If anything, it's come down in the last year. And we're getting anecdotal reports of less drug dealers. I mean, if you get rid of that black market, you've got tax revenues to deal with, the addictions, and some of the unintended consequences of legalized marijuana, maybe this system is better than what was admittedly a pretty bad system to begin with.

Hickenlooper's views on legalization have been evolving since 2014 based on what has actually happened in Colorado, which suggests the "big problems" that Trump perceived in 2015 may have been exaggerated by the prohibitionists who were feeding him information. Even if legalization were a disaster in Colorado, of course, that would not mean the federal government should try to stop it. The federalist approach Trump has said he favors allows a process of trial and error from which other states can learn.

According to Hickenlooper, Attorney General Jeff Sessions, prior to his confirmation, told Sen. Cory Gardner (R-Colo.) that marijuana enforcement "wasn't worth rising to the top and becoming a priority." That assurance is consistent with Sessions' vague comments on the subject during a confirmation hearing last month but seems to be at odds with White House Press Secretary Sean Spicer's statement last week.

If Sessions does try to shut down state-licensed marijuana businesses in Colorado, it sounds like Hickenlooper is ready for a fight. "Our voters passed [legalization] 55-45," he told Todd. "It's in our constitution. I took a solemn oath to support our constitution....The states have a sovereignty just like the Indian tribes have a sovereignty, and just like the federal government does." Asked if he questions whether "it's clear that the federal government could stop you," Hickenlooper replied, "Exactly. I don't think it is."

Most Republicans Oppose Federal Interference With Marijuana Legalization

Fri, 24 Feb 2017 08:00:00 -0500

Yesterday afternoon, White House Press Secretary Sean Spicer suggested that the Justice Department under newly installed Attorney General Jeff Sessions will be more inclined to enforce the federal ban on marijuana in states that have legalized the drug for recreational use. A large majority of Americans, including most Republicans, think that's a bad idea, according to poll numbers released the same day as Spicer's comments. Answering a question from an Arkansas reporter wondering how the DOJ will respond to that state's new medical marijuana law, Spicer said "there's two distinct issues here: medical marijuana and recreational marijuana." He reiterated President Trump's support for laws that allow patients to use marijuana for symptom relief, which 28 states have enacted. Spicer also noted that Congress has repeatedly approved a spending rider that restrains the DOJ from taking action against medical marijuana suppliers in those states. But he said "there is a big difference between that and recreational marijuana," which eight states have legalized, and predicted there will be "greater enforcement" of the federal ban in those states under Sessions, saying "they are going to continue to enforce the laws on the books with respect to recreational marijuana." While Spicer emphasized the difference between medical and recreational marijuana, he overlooked a more important distinction: between opposing state laws that allow recreational use of marijuana and supporting federal intervention aimed at overriding them. That distinction is clear in the latest Quinnipiac University poll, which finds that 71 percent of Americans "oppose the government enforcing federal laws against marijuana in states that have already legalized medical or recreational marijuana." By comparison, 59 percent think marijuana "should be made legal in the United States." That means many Americans who oppose legalization nevertheless think states should be free to adopt that policy. A disproportionate number of those people are members of Trump's party: While only 35 percent of Republicans in the Quinnipiac poll supported marijuana legalization, 55 percent opposed federal interference with it. A CBS News poll conducted last April found even stronger Republican opposition to the sort of meddling Spicer predicted. Asked if "laws regarding whether the use of marijuana is legal" should be "determined by the federal government" or "left to each individual state government to decide," 70 percent of Republicans said the latter, compared to 55 percent of Democrats (who as usual were more likely to favor legalization). These results make sense to the extent that conservatives take seriously their avowed commitment to federalism, which Trump also claims to support. At the 2015 Conservative Political Action Conference, Trump said he favored medical marijuana but had concerns about broader legalization, a decision he nevertheless said should be left to the states. "If they vote for it, they vote for it," he said. Trump confirmed that position at a 2015 rally in Nevada: "In terms of marijuana and legalization, I think that should be a state issue, state by state." Sessions, a former Alabama senator, also pays lip service to federalism. After the death of William Rehnquist in 2005, Sessions gave a floor speech in which he praised the chief justice for recognizing the limits of federal power: He understood that the Federal Government, through the Commerce Clause, has broad power, but there are limits to the reach of the Commerce Clause. It does not cover every single matter the United States Senate may desire to legislate on, to the extent that the federal government controls even simple, discreet actions within a State. He reestablished a respect for state law and state sovereignty through a number [...]

Do Conservatives Still Care About Federalism Now That Republicans Run the Federal Government?

Thu, 23 Feb 2017 12:40:00 -0500

For much of the past eight years, Republican governors argued in favor of giving states more control over policy-making, at least partially as a political strategy to oppose the Obama administration. Along that road to federalism, though, a funny thing happened. Republicans won majorities in the U.S. House, then the Senate, and now control the White House. Against that backdrop, is federalism still en vogue for Republicans? The four GOP governors—Arizona's Doug Ducey, Kansas' Sam Brownback, Kentucky's Mett Bevin, and Wisconsin's Scott Walker—who addressed a crowd of mostly conservative activists at the Conservative Political Action Conference on Thursday morning made the case that it is. But the tone, predictably, has shifted from one of rebellion and opposition, to one of cooperation and opportunity. "We may not get the same opportunity ever again, we can't squander it," said Ducey, referring to Republican control of not only Congress and the presidency, but to the historic levels of GOP control in state capitols from coast to coast. "I am thrilled with this cabinet that president Trump has appointed," he said. "And even more so that there is a former governor, who can understand what red tape can do at the state level, in Mike Pence as vice president." While all four governors offered praise for President Donald Trump's cabinet selections in general, each also singled out the appointment of Betsy DeVos to head the federal Department of Education, something they said could usher significant reforms to how school policy is handled. Devos has been an outspoken advocate for school choice and charter schools, and became a lightning rod for criticism from teachers' unions during her confirmation hearings. "I called Betsy Devos and I said 'been there, done that,'" said Walker, recalling fondly his clashes with public sector unions and progressive protestors in Wisconsin after the passage of a law in 2011 that stripped many public workers of their collective bargaining privileges. The Occupy movement, Walker said, didn't really start on Wall Street, "but on my streets" in Madison, Wisconsin. Walker also praised Trump's selection of Scott Pruitt as the new administrator of the Environmental Protection Agency, and argued that states should play a bigger role in setting environmental policy. "My hope would be that this Congress would work with the president and the administration to reorganize—and not just reorganize the existing structures, but send more of it back to the states," Walker said. "The EPA, in my opinion, states can do that better. Let states handle that." Bevin, of Kentucky, compared the EPA to Frankenstein's monster—both were created with noble intentions, but have turned on their creators, he offered—and echoed Walker's call to let the states handle environmental policy on their own. "Nobody wants you to drink dirty water or breathe dirty air. There's not a state, Democratic or Republican alike, that could not manage this and would not be incentivized to manage this at the state level," he said. Local control of government policy is no guarantee of liberty, of course, and any appeal to federalism made by the chief executive of a state government is necessarily, on some level, self-serving. Governors have a strong incentive to push back against the federal government to let them make more decisions, Still, as Ducey pointed out on Thursday, there's an element of competition that exists between states but is absent at the federal level. States that make good policy choices can attract businesses and people, while one-size-fits-all federal policy is rarely good (or bad) for everyone. It's a point that Walker—fresh off an unsuccessful presidential run and gearing up for a likely re-election campaign in Wisconsi[...]

How the Supreme Court's Conservative Justices May Have Saved Undocumented Aliens in Sanctuary Cities

Fri, 27 Jan 2017 09:15:00 -0500

After Donald Trump's executive order cracking down on so-called sanctuary cities, liberals have gone into into full defiance mode. Mayors of New York, Chicago and (image) many more localities have declared that they have no intention of hewing to Trump's demands to handover their peaceful, hardworking undocumented workers even if nixes their federal dollars.

Good for them!

But the fact of the matter, I note in my column at The Week, is that when nobility is expensive you get less of it. A spine is a luxury good!

So it is a very good thing both for the liberal spine – and undocumented workers – that Trump's threat to cut off funding is a toothless one. But here's the irony, the folks who defanged him were the conservative justices on the Supreme Court who believe in checks and balances and federalism (all things that are endangered in Trump's GOP) and wrote the Obamacare ruling.

What would have happened if the court's most liberal justices had prevailed?

Go here to find out.

The Problem With Block Grants

Mon, 23 Jan 2017 16:00:00 -0500

Obscured amid the controversy over crowd size and the women's march that followed was the substantive policy at the heart of President Trump's inaugural address. That came in the language about "we are transferring power from Washington, D.C., and giving it back to you, the people," and is being followed up with a reported congressional initiative to turn Medicaid, the federal healthcare program for the poor, into "block grants to the states." States already exercise substantial discretion over Medicaid. Even the name of the program varies from state to state—Medi-Cal in California, DenaliCare in Alaska, MassHealth in Massachusetts, TennCare in Tennessee. The states already put some money into funding the programs. And it may be that the proposed changes are an improvement over the current system. Local control puts decisionmakers closer to end-users, shortening the distance that information needs to travel, and making it easier to adjust programs to local circumstances. There's a back-story here. Republicans have loved the idea of "block grants to the states" since at least the 1990s, when the Newt Gingrich-led Congress reformed the welfare program known as Aid to Families With Dependent Children. Before that (and some would say, even to this day), the question of which decisions got made in Washington, and which in state capitals, had become unfortunately clouded by racism, as the Southern states refused to comply with their obligations under the Constitution. But amid the present push to devolve power to state and local governments, it's worth remembering that there are some drawbacks, too. First of all, "block grant to the states" still often gives the politicians in Washington and their lobbyist hangers-on ample opportunity to play a role in directing the cash flow. There are almost always conditions imposed on how the money can be used, and there's almost always a formula involved in how the money is allocated. Both the conditions and the formula allow room for an awful lot of Washington-based mischief making and influence peddling. At the state level, meanwhile, the "block grant" provides an opportunity for government spending unconnected to the act of revenue-raising. It's practically free money, so the state and local officials want to spend—they use words like "capture"—as much of it as possible. Even worse, while state and local laws usually mandate balanced budgets, the federal government can rack up plenty of debt, so the block-grant mechanism is a way for state and local politicians to circumvent their own budget constraints. The overall effect is to encourage government spending that wouldn't otherwise happen. One way to understand this is to do a thought experiment. The next time some Republican politician starts talking about turning a federal program into "block grants to the states," ask: What would happen if instead of turning it into "block grants to the states," the politicians just flat-out eliminated the program, and cut taxes and borrowing by the amount that had been spent? Perhaps some state or local governments would restart the program at the state or local level, or provide the service on their own, with some new revenue stream. Perhaps some other state or local governments would choose not to provide the service. Perhaps the for-profit or nonprofit private sector would provide solutions to whatever need had been met by the federal government program. If the service or program were important enough, perhaps individuals or businesses would choose to move to a state, city, or town where the service was being provided. One might object that there are some rights or services so basic that one's ability to access them shouldn't depend on where[...]

Federalism in the Age of Trump

Thu, 19 Jan 2017 09:30:00 -0500

Once Donald Trump takes the oath of office on Friday, Republicans will control all the levers of power in Washington, D.C., for the first time since 2006. That does not mean there will be smooth sailing ahead for federal policymakers. Already, Trump and congressional Republicans determined to "repeal and replace" Obamacare have been stymied by the complexities of the health care law and the difficulty of fitting 330 million people into a single policy proposal. On infrastructure, Trump has promised a massive stimulus—as much as $1 trillion in new spending—but he's likely to face opposition from inside his own party, which spent most of the last eight years debunking the idea that federal deficit spending is good for the economy. The appointment of Betsy DeVos, a champion for school choice and charter schools, as the next secretary of education is meant to indicate a clean break from the Obama administration on policy for schools, but there will be challenges on that front too. Unwinding federal education mandates like Common Core and No Child Left Behind are unlikely to be much easier than hacking away at the Affordable Care Act. In place of major federal action to implement new policy, then, the new Republican-controlled government might want to take a page out of their pocket constitutions—the page with the Tenth Amendment printed on it. When the federal government struggles to find solutions, states can lead the way on these, and other, important issues. The biggest policy debates facing America in 2017 will not be solved—or at least not solved best—by monolithic decision-making in the White House and the halls of Congress. Letting states sort out thorny issues provides other advantages too, like the fact that it is relatively easy for individuals and businesses to voluntarily exit from states that make poor policy choices. To get a sense of how state governments can improve the prospects for liberty, both with and without help from the feds, Reason surveyed a group of wonks toiling to change policies in state capitals from coast to coast. This is what federalism in the age of Trump could look like. Expanding Choice in Education No Child Left Behind, the federal law that increased spending for schools in exchange for more testing to track student learning, turned 15 this month. It's old enough to be high school sophomore, but it's hasn't earned good grades. By the end of the 2014 school year, 100 percent of all American students were supposed to meet the standards outlined by the Bush era law. Schools that failed to meet those goals were supposed to face consequences like restructuring. Most of that hasn't happened. States lowered standards to make sure that more students could meet them and the Obama administration issued blanket waivers for the schools in states that adopted a new set of federal teaching guidelines called Common Core. The problems with No Child Left Behind illustrate two of the biggest problems with the current status of public education. First, it was a one-size-fits-all solution that, second, funded education infrastructure—school buildings, administrators, and teachers—instead of funding students. Yet the past decade-and-a-half has seen an upwelling of innovative education policy ideas from the state level, including expansions of charter schools, voucher programs, and education savings accounts. Many of those reforms have been focused on giving families a choice when it comes to public education, particularly for students trapped in failing schools for no reason other than their ZIP code. DeVos, in her home state of Michigan, has a long history of fighting for those kinds of reforms. In 2000, she was heavi[...]