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All articles with the "Federalism" tag.

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

Last Build Date: Tue, 28 Feb 2017 12:18:17 -0500


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 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 Recr[...]

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 of his federalism opinions. In 2013 Sessions cosponsored the Restoring the 10th Amendment Act, which would have facilitated lawsuits by state officials challenging regulations they believe exceed the powers the Constit[...]

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 Wisconsin in 2018—illustrated with a move that smacked of a campaign stump speech. Pulling a dollar out of his pocket, and asking the assembled crowd to do the same, he asked whether they would "rather send it to Washington, [...]

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 one lives—they should be guaranteed to all Americans. The "rights" part of that is what some of our Constitution is about. And the idea that, say, your Social Security retirement benefits would depend on what state [...]

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 heavily involved in an unsuccessful effort to remove the state constitution's ban on voucher programs via ballot initiative, and since then she has backed efforts to expand public charter schools there. In her new federal po[...]

Finally: The Case Against Hamilton

Sat, 14 Jan 2017 10:00:00 -0500

I don't think there's a slight bit of hyperbole or exaggeration involved when I say that Hamilton, the awful musical that millionaire New Yorkers are required by law to throw away thousands watching, represents everything that was wrong with America in 2016. Allow me to make the case. First, there's the music. I'm admittedly not much of a hip-hop aficionado, but I know shit from Shinola. From my perspective the art form has more or less been going downhill since Strictly Business (the EPMD record, not the Tommy Davidson vehicle), but there have been some highlights worth mentioning, mostly thanks to Ice Cube and an army of Wu bangers. The point I'm trying to make is that, even to untrained ears such as mine, Hamilton is particularly bad. On first take, I thought it sounded a bit like a University of Iowa freshman—the kind who only listens to "real hip-hop"—attempting his first mixtape. One of my Twitter followers corrected me, however. It's closer to a Braintree elementary school making a rap song for parents' night. The latter description hints not merely at the simple, formulaic quality of the material, but also the cloying, bourgeois quality of it all. From the reference to "ten-dollar Founding Father without a father" to "when the British taxed our tea we got frisky," the whole affair sounds more like something made by precocious children than a professional composer. We have Lin-Manuel Miranda to blame for this cultural atrocity, a scion of a psychologist and an advisor to New York mayor Ed Koch, who attended the same elementary and high school as Supreme Court Justice Elena Kagan. Sure, he got bullied by Immortal Technique in school, but how much street cred is that really worth? After this he attended Wesleyan University, a top-10-ranked school that costs $65,000 a year, according to Forbes, before making his mark writing jingles for noted prostitute-enthusiast Eliot Spitzer's 2006 campaign. The original version of Hamilton debuted at a Vassar College workshop. All this is, of course, an attempt to firmly establish Miranda's street cred, which is unassailable. Some are irritated about the people who aren't white playing white people, but I'm not. The whole production plays so fast and loose with the truth that it's hard to pick any particular piece to criticize, there's a reality correlation approximating that of the Weekly World News. At the top of the list, though, has to be casting Alexander Hamilton as some sort of proto-multicultural progressive. That's either stupidity or mendacity, take your pick. Hamilton was, if anything, the most aristocratic of the Founding Fathers, the closest thing to a Colonial Tory. You know that electoral college you've been gnashing your teeth over for the last couple months? Guess whose idea that was? Of course, shit music and feels-over-reals weren't the whole problem with America in 2016—and they aren't the biggest deal facing us in 2017, either. No, the worst thing about this present moment in time is the smugness with which zillionaires and their sycophants on the coasts piss all over anyone who does actual work for a living. That's not just one of the main reasons that Trump won the election. That attitude makes for garbage art. Historically speaking, you've got high art and folk art, each with their own set of aesthetic guidelines and measuring sticks. What's historically anomalous is commercial art—art that exists not due to the patronage of cultured elites or through the unrewarded efforts of the hoi polloi. It's art that exists to make money. Art that exists to make money isn't a bad thing. A lot of the best music of the 20th century was commercial art. The Beatles are probably one of a handful of things anyone will remember about the 20th century in 500 years, a stunning example of commercial art as inspired genius. What's irritating, though, is when well-connected milliona[...]

Sessions' Wishy-Washy Marijuana Comments Reflect the Ambiguity of Current Policy

Wed, 11 Jan 2017 07:00:00 -0500

During his confirmation hearing yesterday, Jeff Sessions did not do much to clarify how he will treat state-licensed marijuana businesses as attorney general, but that is not entirely his fault. Marijuana remains illegal under the Controlled Substances Act, and the Justice Department cannot simply announce that it will no longer enforce that ban in states that have decided to legalize the drug for medical or recreational use. At the same time, the feds do not have the resources to fully enforce marijuana prohibition in states that have opted out of it, and they cannot constitutionally force those states to help. The short-term future of the newly legal cannabis industry will depend on how the Trump administration splits the difference between those two extremes. After a lot of mixed signals, included a crackdown on medical marijuana that contradicted promises of restraint, the Obama administration settled on an ambiguous policy outlined in a 2013 memo from Deputy Attorney General James Cole. Cole told U.S. attorneys that in deciding which marijuana cases to pursue in states that have legalized the drug, they should be guided by eight "enforcement priorities," including prevention of violence, interstate smuggling, distribution to minors, and "adverse public health consequences related to marijuana use." Cole did not offer any assurances, but the implication was that federal prosecutors should leave state-legal cannabusinesses alone unless their operations implicate one or more of those priorities. Exactly what that means is a matter of interpretation, and Cole left open the possibility that other, unspecified priorities might also justify civil or criminal actions against state-licensed marijuana suppliers. But in practice, the Obama administration since the 2013 Cole memo generally has refrained from interfering with state policies allowing commercial production and distribution of marijuana for medical or recreational use. Which brings us back to Sessions, who at yesterday's hearing 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 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' answer clearly was no. Depending on your perspective, the Cole memo can be read as a license for federal interference rather than a promise of prosecutorial forbearance. The goal of preventing "adverse public health consequences related to marijuana use" by itself could be interpreted to justify as wide a crackdown as a passionate pot prohibitionist like Sessions might like to see. So even if Sessions committed himself to sticking with the policy described in the Cole memo (which he did not do yesterday), that would not preclude him from prosecuting state-licensed marijuana suppliers, seizing their property, or threatening to do so (which would be enough to seriously disrupt the industry, if not shut it down altogether). Given Sessions' ambiguous statements about an ambiguous policy, it is not surprising that reaction from supporters of legalization was mixed. "Senator Sessions indicated that the Justice Department's current guidelines for marijuana policy enforcement are 'truly valuable' in setting departmental priorities," noted Aaron Smith, executive director of the National Cannabis Industry Association. "T[...]

Meet California’s Face of Federal Government Resistance—Eric Holder?

Fri, 06 Jan 2017 12:00:00 -0500

(image) When Eric Holder was attorney general for President Barack Obama, the Department of Justice used the federal ban on marijuana possession to arrest and imprison Californians who were legally growing under the state's medical marijuana laws.

But never mind—that Donald Trump sure is a monster! Concerned about what Trump might do to increase enforcement of immigration laws and to loosen environmental regulations, California's state legislature has hired Holder from his law firm, Covington & Burling, to serve as outside legal counsel. Mind you, California has a very powerful and expensive crew of state-level attorneys, but what's an additional $25,000 a month (for now)?

From The New York Times:

[State Senate leader Kevin] de León said he expected California to challenge Washington — and defend itself from policies instituted in Washington — on issues including the environment, immigration and criminal justice. He said California Democrats decided to turn to Mr. Holder as they watched Mr. Trump assemble his cabinet and begin to set the tone for his presidency.

"It was very clear that it wasn't just campaign rhetoric," Mr. de León said of Mr. Trump's proposals over the past year. "He was surrounding himself with people who are a very clear and present danger to the economic prosperity of California."

They're going to fight the Trump administration over differences on criminal justice, they say. But there's no reference to how Holder himself treated California and its citizens when he was attorney general when it came to marijuana enforcement. Or maybe that's the point? Holder knows full well all the awful things the federal government can do to the citizens of California because he used to be the guy doing it?

That Holder oversaw an agency that sent Californians to federal prison even though what they were doing was legal in the state does make one wonder how (or if) the state would respond if the Trump administration were to initiate a new drug war crackdown now that the Justice Dept. has finally actually backed off. Californians just voted in November to legalize recreational marijuana use, but Trump's nominee for attorney general, Sen. Jeff Sessions (R-Ala.), is a noted drug warrior.

Hypocrisy aside, perhaps Holder's involvement will help protect California citizens from harsh federal criminal enforcement. Though, based on the arguments presented by the state, Holder's involvement is also designed to keep the feds from freeing California citizens from the state's massive oppressive regulatory apparatuses on environmental and development issues.

Below, watch ReasonTV detail the federal government's imprisonment of Californian medical marijuana grower Aaron Sandusky under Holder's watch:

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On His Way Out the Door, Obama Suggests Marijuana Should Be Legal

Wed, 30 Nov 2016 06:30:00 -0500

In a new interview with Rolling Stone, President Obama comes as close as he ever has to endorsing marijuana legalization, saying, "I am not somebody who believes that legalization is a panacea. But I do believe that treating this as a public-health issue, the same way we do with cigarettes or alcohol, is the much smarter way to deal with it." Tobacco and alcohol, of course, are not prohibited by state or federal law, so the implication is that marijuana shouldn't be either. But Obama apparently is waiting until he leaves office to say so explicitly: I will have the opportunity as a private citizen to describe where I think we need to go. But in light of these referenda passing, including in California, I've already said...that it is untenable over the long term for the Justice Department or the DEA to be enforcing a patchwork of laws, where something that's legal in one state could get you a 20-year prison sentence in another. So this is a debate that is now ripe, much in the same way that we ended up making progress on same-sex marriage. There's something to this whole states being laboratories of democracy and an evolutionary approach. You now have about a fifth of the country where this is legal. It sounds like Obama plans to push marijuana reform "as a private citizen." It's too bad he did not do more to advance the debate as president. To his credit, Obama has declined to interfere with legalization, saying "it's important" that states be free to try a different approach. He has conceded that marijuana is less hazardous than alcohol, to the consternation of old-timey drug warriors like the man Donald Trump has chosen to be his attorney general. Last year Obama even allowed that "if enough states end up decriminalizing, Congress may then reschedule marijuana"—a step he described as "progress." But he has resolutely refused to encourage such progress through administrative rescheduling or by urging Congress to accommodate state marijuana laws. Legislation making the national ban on marijuana inapplicable in states that have legalized it, as Rep. Dana Rohrabacher (R-Calif.) has proposed, would remove the threat of prosecution and forfeiture that hangs over state-licensed cannabis suppliers, give them unimpeded access to banking, and allow them to take the same tax deductions as any other business. Such legislation has the potential to attract support on the right as well as the left because it embodies the federalism that Republicans claim to revere. While Obama's endorsement would not have guaranteed passage, it would have elevated the issue, encouraged conservative constitutionalists to take a position, and left the cause of marijuana federalism in better shape to prevail under a new president who claims to support it but has chosen an attorney general who is dismayed by the ongoing collapse of pot prohibition. In Obama's view, he has done all that could reasonably have been expected. When Rolling Stone publisher Jann Wenner asks why he did not take a stronger position on marijuana legalization, Obama implies that it was not politically feasible: One of the things that I think it's important for progressives to do when we're in a reflective mode after an election like this is, we can't have it both ways. We can't say, "Why aren't you reaching out to the folks who voted against us? And by the way, why aren't you maximizing getting 100 percent for the things that those of us, you know, who are already progressive and living on the coasts think should be done right away?" The point is that politics in a big, diverse country like this requires us to move the ball forward not in one long Hail Mary to the end zone, but to, you know, systemically make progress. It is weird to portray marijuana reform as a cause that only "progressives" support when [...]

Is Trump's Pot Tolerance Fading?

Wed, 23 Nov 2016 00:01:00 -0500

On the same day Donald Trump was elected president, four states legalized marijuana for recreational use, while four others legalized or expanded access to medical marijuana. As a result of those ballot initiatives, most states now recognize marijuana as a medicine, and one in five Americans lives in a state that has decided to tolerate cannabis consumption without a doctor's note. During his campaign Trump said he supports medical marijuana but has concerns about broader legalization, a policy he nevertheless said states should be free to adopt. Trump's recently announced choice for attorney general, Sen. Jeff Sessions, casts doubt on those commitments. The Alabama Republican, a former U.S. attorney and state attorney general, is an old-fashioned drug warrior who pines for the days when Nancy Reagan's Just Say No campaign helped "create a hostility to drug use." He was outraged when President Obama conceded that marijuana is less dangerous than alcohol, and he recently claimed that "good people don't smoke marijuana." Sessions has repeatedly criticized the Obama administration's policy of tolerating state-authorized marijuana suppliers. During a 2009 Senate hearing, he complained that "Attorney General Holder has said federal authorities will no longer raid medical marijuana facilities in California, which is against U.S. law" and "contrary to the position taken by the Drug Enforcement Administration." At a hearing last April, Sessions bemoaned the message sent by marijuana legalization, which he said implies that "marijuana is not dangerous" and encourages teenagers to use it. "We need grownups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized," he said. "The Department of Justice needs to be clear, and the president needs to assert some leadership." Now that Trump has picked Sessions to head the Justice Department, we may get a clearer idea of how far Sessions wants to go in pressing the point that "marijuana is not the kind of thing that ought to be legalized." While medical marijuana suppliers are protected from the feds by a spending rider that is likely to be renewed, if given free rein Sessions could easily wreak havoc in the recreational industry. Every state-licensed marijuana business remains a criminal enterprise under federal law, subjecting its owners to the risk of prosecution and forfeiture. An anti-pot crusader at the helm of the Justice Department could make that risk salient again by raiding growers, manufacturers, and retailers, or just by threatening to do so. Sessions also could challenge state legalization in federal court, although he might not like the results even if he wins. While the DOJ might prevail in arguing that state licensing and regulation of cannabusinesses conflicts with federal law, it cannot force states to recriminalize what those businesses do, so the upshot of a successful lawsuit could be less government oversight of the industry. Any such interference by the DOJ would contradict Trump's commitment to marijuana federalism. "I really believe you should leave it up to the states," he said at a rally in Reno last year. "It should be a state situation…In terms of marijuana and legalization, I think that should be a state issue, state by state." Most Americans agree with that approach. Recent national polls indicate that most Americans (60 percent, according to Gallup) think marijuana should be legal, while most Republicans continue to oppose legalization. But even among Republicans, most—70 percent, according to a CBS News poll conducted last April—think the feds should not try to override state decisions in this area. In other words, marijuana legalization is considerably more popular than Trump, who received less than 47 percent of the [...]

Victories for Eight of Nine Marijuana Initiatives Hasten the Collapse of Prohibition

Wed, 09 Nov 2016 06:30:00 -0500

Donald Trump's defeat of Hillary Clinton was not the only big surprise produced by yesterday's elections. Even those of us who were rooting for the nine marijuana initiatives on state ballots this year did not expect so many of them to pass. Yesterday voters made marijuana legal for recreational use in four states (California, Maine, Massachusetts, and Nevada) and approved or expanded medical access in four more (Arkansas, Florida, Montana, and North Dakota). The only loss was in Arizona, where voters who very narrowly approved medical use in 2010 declined to take the further step of making marijuana legal just for fun. The margins of victory were also surprising. After falling short just two years ago, a constitutional amendment legalizing medical marijuana got 71 percent of the vote in Florida, 11 points more than the supermajority it needed. In California, where legalization lost by seven points in 2010, the yeas beat the nays by almost 12 points. The difference in Nevada was more than eight points, which was especially delightful in the home state of casino magnate Sheldon Adelson, who provided 97 percent of the $3.5 million raised by the opposition campaign and spent another $140 million on the Las Vegas Review-Journal, a longtime opponent of marijuana prohibition that switched sides under its new ownership. In North Dakota, where the last known survey on the question found that 47 percent of likely voters thought marijuana should be legal for medical use, an initiative allowing patients with "debilitating medical conditions" to obtain cannabis from "compassion centers" seemed like a good idea to 64 percent of the electorate. The consequences of this nearly complete sweep were dramatic. Prior to yesterday, four states with a combined population of 17 million (Alaska, Colorado, Oregon, and Washington) were willing to allow cannabis consumption without a doctor's note. Now the number of pot-tolerant states has doubled, while their population has nearly quadrupled and includes one in five Americans. The long overdue conversion of California, which by itself accounts for 12 percent of the country's population and 15 percent of its economic output, carries special political and cultural weight. We now have a continuous weed-friendly zone on the West Coast and the first two oases of tolerance in the East. Yesterday's elections also gave us the first two medical marijuana states in the South and increased the number of states with such laws from 25 to 28, meaning states that refuse to let patients have whatever relief cannabis can give them are now in the minority. These changes reflect growing popular support for legalizing marijuana, which according to Gallup hit a record level of 60 percent this year. That trend, in turn, reflects wide and growing familiarity with a plant that Americans generally have found to be much less scary than their government portrayed it. The next step is for that government to go beyond the uncertain forbearance the Obama administration has offered by actively accommodating states that have rejected marijuana prohibition. Among other things, that means changing federal law so that it no longer threatens or obstructs state-legal marijuana businesses, as legislators such as Rep. Dana Rohrabacher (R-Calif.) have been urging for years. President-Elect Trump (God help us) has suggested he is open to such accommodation. While personally frowning on legal pot (and disavowing his previous support for legalizing all drugs), Trump says marijuana policy "should be a state issue," which also happens to be what the Constitution requires. "Trump has clearly and repeatedly pledged to respect state marijuana laws," says Marijuana Majority Chairman Tom Angell, "and we fully expect him to [...]

Evan McMullin on Federalism, Spending, War, Edward Snowden, and 'the Bigotry of Donald Trump'

Mon, 07 Nov 2016 09:30:00 -0500

In a just world, every left-leaning commentator who made a joke in 2012 about Mitt Romney's "binders full of women" would be teleported to Utah for the waning moments of Evan McMullin's Quixotic campaign to become the first third-party presidential candidate to win a state since George Wallace in 1968. There on the trail, from his hometown of Provo to Richfield to Cedar City, those who sneered at the atavistic gender values of Mormons would be startled to discover a 40-year-old candidate and his 36-year-old female vice presidential partner drawing enthusiastic applause for their repeated insistence that, contra the values embraced by Donald Trump, "all men and women are created equal." At a brisk rally Saturday night attended by around 250 people in the southwestern Utah city of St. George, McMullin and his running mate, Mindy Finn, repeatedly quoted and referenced the Declaration of Independence while stressing that their proposed "new conservative moment" would be centered on "liberty and equality." Along with a strong emphasis on states' rights—always a crowd-pleaser in a religiously idiosyncratic state in constant conflict with the federal government over land use—the McMullin/Finn defense of pluralistic values against the degradations of Trump was by far the biggest emphasis, dwarfing treatment of such issues as national security and abortion. "We should never have a religious test in this country," McMullin said from the stage, with a note of exasperation. "An attack on one an attack on all of us." Both candidates reserved some of their sharpest outrage for politicians who lacked the courage to defy Trump's collectivist vulgarity. "We need to stop relying on leaders that didn't have the courage to stand up for us," he said, in one of the biggest applause lines of the night. In their campaign RV after the speech, I caught up with McMullin and Finn to hear their sales pitch to voters skeptical of government power. While the conversation started with discussion of federalism, reforming entitlements, and more strictly interpreting the Commerce Clause of the Constitution, and continued into some perhaps-surprising territories of opposing bulk metadata collection and the Iraq War (the latter at least in retrospect), the subject kept returning to the intolerable outrages of a Trumpified GOP. "A lot of the people in the party, people like us, people who are gravitating toward our campaign," Finn said, "they don't want any part of a party that normalizes bigotry." McMullin and Finn are both Marco Rubio conservatives—each supported the Florida senator in the primaries, citing his positions on national security and inclusiveness. But they have a more circumspect approach toward government power than many of the Washington neoconservatives who have championed their campaign. Whether they have put themselves in position to influence a post-Trump Republican Party is still very much an open question, but compared to the statism of the major-party candidates, theirs is a welcome addition to a dreary if interesting political season. The following is an edited transcript of our conversation: Q: Make the positive case for you and your ticket, on liberty-movement grounds. Make the pitch to people who want to reduce the size and the scope of government. Evan McMullin: Well, Mindy and I are very committed to returning power to the states. We want to decrease the size of the federal government. You have to reform entitlement programs in order to do that. In 2014, I think, the federal government spent $3.7 trillion, and the states combined spent $1.4–1.5 trillion. It just shows you how lopsided state power versus federal power is. Q: It was amazing to me here...the exte[...]

USDA Wrongly Targets Wyoming's Food Freedom Act

Sat, 08 Oct 2016 07:31:00 -0400

Earlier this week, in one of several related announcements, the USDA proudly declared that its MyPlate, MyState program, which the agency bills as "an effort to celebrate homegrown pride, foods and recipes and bring communities together around healthy eating," was entering a new phase. "Through MyPlate, MyState, USDA is working to make the connection between healthy eating and more than 160,000 farmers and ranchers nationwide that are selling into local markets through... farmers markets, farm stands and community supported agriculture (CSA) programs," reads an agency release the USDA emailed to me and others this week. You'd have to forgive some folks who sell their food at a small farmers market in Wyoming if this USDA self-promotion rings a bit hollow. That's because late last month, agents from the USDA's Food Safety Inspection Service (FSIS) showed up at a farmers market in Gillette, Wyoming, and ordered a food vendor at the market to destroy his food. Specifically, the FSIS agents ordered John Thompson, who makes Big John's Chili and sells it at the market, to dump out all of his jars of chicken green chili. Thompson complied, despite the fact the inspectors failed to respond to at least one request to identify themselves, and ordered at least one person at the farmers market who was taping the raid to cease filming, lest FSIS cite him for intimidating federal agents. What's the big deal with a guy selling jars of chili? In short, nothing. While details of the raid are still fuzzy, I'm not aware of any legal justification for the FSIS action. To be certain, if Thompson hadn't been selling the chili but had been donating it, or making it for friends to serve at home, or serving it at a church dinner, the USDA food-safety inspectors would never have gotten on their high horse and traveled (rumors say all the way from Colorado) to Wyoming. But because an impossibly small vendor decided to can and label the chili, it appears the USDA felt compelled to act. But that doesn't mean the agency had the authority to act. "In my opinion the FSIS didn't have the authority to inspect that food because it didn't involve interstate commerce," Wyoming State Rep. Tyler Lindholm told County 17, a local news site. He's right. While federal law doesn't empower FSIS to act as it did, it's also true that Wyoming state law protects Thompson's right to sell his chicken chili at a farmers market, thanks to the state's Food Freedom Act. State Rep. Lindholm knows a thing or two about the Wyoming Food Freedom Act. He co-sponsored the bi-partisan bill, which breezed through the state senate on its way to becoming law. It "allow[s] for the sale and consumption of homemade foods and to encourage the expansion of agricultural sales by farmers markets, ranches, farms and home based producers" who produce and sell food and drink agricultural products—including produce and poultry, but not pork, lamb, or beef—wholly within the state of Wyoming, and only for home consumption. The reason pork, lamb, and beef aren't sales aren't protected under the Wyoming law is that Congress, in the late1960s, prohibited the commercial sale of those meats unless they were processed in a USDA-inspected facility. In an older photo, one of the jars of Thompson's green chili appears to list pork as an ingredient. That could have raised agency red flags. Its sale wouldn't be protected under federal or state law. But the food the USDA forced Thompson to dispose of was chicken chili, not pork chili. I interviewed Lindholm in March 2015, shortly after the Food Freedom Act's passage. I also spoke with him this week. "Maybe they haven't read the Wyoming Food Freedom Act," Lindholm suggested in a vi[...]