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Published: Tue, 20 Mar 2018 00:00:00 -0400

Last Build Date: Tue, 20 Mar 2018 17:26:46 -0400


If SCOTUS Lets States Legalize Sports Betting, Will They Be Ready?

Fri, 16 Mar 2018 08:00:00 -0400

Last December, when the Supreme Court heard oral arguments in Christie v. NCAA, most of the justices seemed inclined to agree that a 1992 law barring states from legalizing sports betting unconstitutionally "commandeers" state officials in service of a federal goal. With the Court expected to issue its decision this spring, Michelle Minton notes in a new report from the Competitive Enterprise Institute, at least 15 states "have enacted regulations for sports gambling within their borders in anticipation of when the federal government steps out of the way." Minton has some tips for those states and any others that hope to replace the black market in sports wagers with a legally regulated industry, a move that promises to protect consumers, control corruption, and raise revenue for the government. Well, two out of three ain't bad. The Professional and Amateur Sports Protection Act of 1992 (PASPA) effectively gave Nevada a legal monopoly on single-event sports betting. But that does not mean Nevada dominates the market. The $4.9 billion in wagers that legal Nevada bookies accepted last year represented something like 4 percent of all sports betting in the United States, Minton says, meaning the share for illegal bookies was more than 20 times as big. This situation makes game fixing easier to hide, undermining the main goal of PASPA, which the big leagues demanded to protect the integrity of sports. As Minton points out, legalization promotes transparency and data sharing, which make cheating easier to detect. The sports leagues continue to defend PASPA, which they are asking the Supreme Court to uphold in Christie. But their leaders' perspective on legal sports betting seems to be shifting along with public opinion, which since the 1970s has swung from majority opposition to majority support. "The commissioners of Major League Baseball (MLB) and Major League Soccer have called for examinations into what a regulated sports betting market would look like," Minton notes. "NBA Commissioner Adam Silver has advocated for full legalization, arguing that 'sports betting should be brought out of the underground and into the sunlight where it can be appropriately monitored and regulated.'" Minton's idea of appropriate regulation includes five major features: "adequate license availability" to ensure there are enough legal businesses to serve the market; "reasonable tax rates," somewhere between 10 and 15 percent of gross gaming revenue, to keep legal operations competitive (and, not incidentally, maximize the government's take); "diverse product offerings," including online options, to attract and keep bettors who would otherwise bring their wagers to illegal bookies; "robust consumer protections," including age, identity, and location identification and self-exclusion lists for problem gamblers; and "regulatory cooperation" among gambling businesses, between gambling businesses and sports leagues, and between states. Some state plans already run afoul of these guidelines. In Pennsylvania, Minton notes, the legislature "set the tax rate at 34 percent of gross gaming revenues, on top of the $10 million one-time licensing fee. These costs represent an enormous barrier to entry that significantly increases licensed bookies' operating costs. As a result, few operators will be able to enter Pennsylvania's legal market and those that do will not be able to offer rates as competitive as those of their illegal counterparts. This makes it likely that the legal sports betting market in Pennsylvania will fail to thrive, causing consumers to either cross the state line seeking friendlier regulatory environments or continue patronizing illegal operators." Like the states that have legalized marijuana, states that legalize sports betting have to take into account a black market that will continue to thrive if taxes and regulations in the legal market are too burdensome. "For the last 25 years, the states have lost out on millions in tax revenue they could have collected from sports betting, thanks to a ban pushed by and maintained by sports leagu[...]

Should Local Governments Have Greater Autonomy from States?

Mon, 12 Mar 2018 10:20:00 -0400

In recent years, there has been extensive focus on legal and political conflicts between states and the federal government. Dissenting states seek greater autonomy from federal dictates. Ongoing legal battles over Obamacare and sanctuary cities are just the latest examples of this phenomenon. But we have also seen a less-well known trend of conflict between states and local government. New articles by prominent legal scholars on opposite sides of the political spectrum contend that local governments should have greater autonomy from states. They make a solid case. But actually achieving increased autonomy will not be easy. Libertarian-leaning conservative law professor Glenn Reynolds (most famous as the founder of the Instapundit blog), has an article focusing on the plight of conservative rural areas subject to the dictates of urban-dominated state legislatures in blue states. As he points out, their complaints have led to the rise of secession movements in states like California and Oregon. Here is his abstract, summarizing the piece: This short piece looks at the growing phenomenon of intra-state secession movements. From California, where plans have been floated to split the state into two, five, or six pieces, to more traditional secessionist movements in Eastern Oregon and Eastern Washington, to plans to separate upstate New York and downstate Illinois from the large metropolitan areas that dominate state politics, various states are facing internal separatist movements. The paper looks at the sources of the dissatisfaction driving these movements, and suggests a number of solutions to address that dissatisfaction without amending the Constitution or adding stars to the flag. From the opposite side of the political spectrum, University of Virginia law professor Richard Schragger (a leading academic expert on local government) has an important new article focused on growing red state legislative efforts to restrict the autonomy or blue urban enclaves within their jurisdiction: American cities are under attack. The last few years have witnessed an explosion of preemptive legislation challenging and overriding municipal ordinances across a wide-range of policy areas. City-state conflicts over the municipal minimum wage, LGBT anti-discrimination, and sanctuary city laws have garnered the most attention, but these conflicts are representative of a larger trend toward state aggrandizement. These legal challenges to municipal regulation have been accompanied by an increasingly shrill anti-city politics, emanating from both state and federal officials. This Article describes this politics by way of assessing the nature of—and reasons for—the hostility to city lawmaking. It argues that anti-urbanism is a long-standing and enduring feature of American federalism and seeks to understand how a constitutional system overtly dedicated to the principles of devolution can be so hostile to the exercise of municipal power. The Article also provides a current accounting of state preemptive legislation and assesses the cities' potential legal and political defenses. It concludes that without a significant rethinking of state-based federalism the American city is likely to remain vulnerable. Both Reynolds' rural red enclaves in blue states and Schragger's urban blue enclaves in red states could potentially benefit from increased local autonomy from states. Greater local control might have important systemic advantages, as well. The most obvious is that more people in both blue and red states could live under the types of policies they like. In addition, greater devolution of power to the local level can increase opportunities for people to "vote with their feet." It is usually cheaper and easier to move from one city to another in the same region, than to decamp to a different state. And foot voting is often a better mechanism of political freedom than ballot box voting, because foot voters have a far higher chance of making a meaningful decision, and much stronger incentives to be well-informed. It[...]

Is it Unconstitutional for States to "Discriminate" Against the Federal Government?

Fri, 09 Mar 2018 15:41:00 -0500

The Supremacy Clause of the Constitution requires state and local governments to obey federal law, so long as that law is within the constitutional scope of federal power. But is it unconstitutional for states to "discriminate" against the federal government by denying it assistance that may be available to private parties and state officials - even in cases where there is no specific federal law forbidding that discrimination? This issue is likely to come up in Attorney General Jeff Sessions' recently filed lawsuit against against California's sanctuary laws. One of them (HB 103) requires the state to inspect federal immigration detention facilities on its territory, even though other detention facilities are not subject to the same inspection regime. Another (SB 54) forbids state and local officials from sharing information with federal immigration officials, even though they are not categorically forbidden frm sharing it with other entities. The third (AB 450) forbids voluntary employer cooperation with federal Immigration and Customs Enforcement raids seeking to round up undocumented immigrants. Each can potentially be characterized as "discriminating" against federal agencies, even though there is no federal law specifically barring this kind of discrimination. In a thoughtful recent post commenting on my own previous post on the Sessions lawsuit, New York University law professor Roderick Hills argues that the constitution restricts state discrimination against the federal government, though he also concludes that the boundaries of this rule are unclear, since it must be balanced against "state autonomy." Rick himself concludes that anti-discrimination rule should be applied "narrowly," and state autonomy "broadly." In my view, there is no such antidiscrimination principle in the Constitution. There is nothing to that effect in the text of the Constitution. The Supremacy Clause only requires the states (and others) to obey federal law. It does not require them to help enforce it or to give the federal government the same services and assistance available to private parties or to state and local officials. Nor are there any Supreme Court cases mandating such nondiscrimination [but see UPDATE below]. Rick cites Davis v. Michigan Department of the Treasury (1989) as a possible counterexample. But Davis does not forbid all state laws singling out the federal government in some way; it and other similar cases merely forbid discriminatory state taxation of federal officials and federal government agencies. When the states impose discriminatory taxes on the feds, they go far beyond merely denying them assistance or services. They directly seize federal assets, or those of federal employees, thus potentially making it impossible for the federal government to use its own resources to enforce federal law on the state's territory. As Chief Justice John Marshall famously put it in McCulloch v. Maryland - the best-known case restricting state taxation of federal instrumentalities - "the power to tax is the power to destroy." By contrast, discriminatory denial of services and assistance (whether that of the state governments or private entities) does not and cannot "destroy" the federal government. It just forces it to rely on its own resources to do its work. The latter is perfectly permissible for states to do. Indeed, the idea that states have a right to deny the use of their resources to the federal government, is at the heart of the Supreme Court's anti-commandeering cases, which deny Congress the power to compel states to help enforce federal law. As Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the "[p]reservation of the States as independent and autonomous political entities." Control over state and local resources is, obviously, at the heart of that independence and autonomy. Ditto for the state's power to regulate private parties within its territory, except when specifically barred by federal law or [...]

Thoughts on the New Constitutional Case Against Obamacare

Wed, 28 Feb 2018 23:35:00 -0500

On Monday, twenty Republican-controlled states filed a lawsuit challenging the constitutionality of the Affordable Care Act's individual mandate, which requires most Americans to purchase government-approved health insurance. The full text of the complaint is available here. The lawsuit contends that, if the mandate is invalidated, the Court must also strike down the entire Affordable Care Act, because the rest of the ACA cannot be "severed" from the mandate. The red state plaintiffs are right to argue that the mandate is unconstitutional. But they are probably wrong to conclude that a ruling against the mandate requires the court to eliminate the rest of Obamacare along with it. Back in 2012, Supreme Court ruled that the mandate is constitutional in its highly controversial decision in NFIB v. Sebelius. But Chief Justice John Roberts' controlling opinion for the Court only reached this conclusion by reinterpreting the mandate as a tax, thereby saving it from being declared unconstitutional. Roberts concluded that the mandate was not authorized by Congress' power to regulate interstate commerce, or by the the Necessary and Proper Clause, which gives Congress the authority to enact legislation that is "necessary and proper" for the execution of other federal powers granted by the Constitution. Thus, it could only be saved by ruling that it qualifies as a tax, authorized by the Tax Clause of the Constitution. Roberts listed several factors that led him to conclude that the mandate can be considered a tax. But a crucial one is that the violators were subject to a fine collected by the IRS. As Roberts put it, "the essential feature of any tax [is that] it produces at least some revenue for the Government." In December 2017, the GOP Congress enacted a tax bill that, among other things, abolished the fine previously imposed on people who disobeyed ACA health insurance mandate. The mandate itself remains on the books. But violators are no longer subject to any penalty. For this reason, the state plaintiffs in the newly filed case argue that the mandate can no longer be considered a tax. In the absence of a financial penalty, it no longer "produces" any "revenue for the Government." Indeed, it no longer even tries to do so. And if the mandate is not a tax and is not authorized by the Commerce Clause or the Necessary and Proper Clause (as the Court ruled in NFIB), then it is no longer within the proper scope of federal power authorized by the Constitution. The plaintiffs are absolutely right on this point. A tax that does not require anyone to pay anything is like a unicorn without a horn. It is pretty obviously not a tax at all. In fairness, the requirement of a monetary payment was not the only circumstance that Chief Justice Roberts considered in determining that the mandate qualifies as a tax. He also claimed that several other factors were relevant, such as that the mandate did not include a scienter requirement, that the penalty was not so high as to be "prohibitory," and that those who violate the mandate were not considered to be lawbreakers if they paid the fine. But, while the requirement of a monetary payment may not have been sufficient to prove that the mandate was a tax, it surely was necessary. You don't have to be a constitutional law scholar to understand that there can be no taxation without some kind of payment. In my view (see here and here), Roberts was wrong to conclude that mandate qualifies as a tax, even when it did impose a fine on violators. It was more akin to a penalty imposed for violation of a law, similar to fines imposed for violateing any number of other laws, such as those banning speeding or jaywalking. But it is even more clear that the mandate cannot be considered a tax once the fine is removed and violators no longer have to pay anything. While the state plaintiffs are right to argue that the individual mandate can no longer be considered a tax, they are wrong to claim that the fall of the mandate should take [...]

Federalists Can’t Support a Cannabis Crackdown

Wed, 10 Jan 2018 00:01:00 -0500

Before last Thursday, state-licensed marijuana merchants operated in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Now that Attorney General Jeff Sessions has clarified the Justice Department's policy regarding the cannabis industry, state-licensed marijuana merchants operate in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Sessions calls this "a return to the rule of law." The description is dubious, not only because the situation for state-legal marijuana growers and distributors is fundamentally unchanged but also because the cannabis crackdown threatened by Sessions offends a basic principle of constitutional law: The federal government may not exercise powers it was never granted. U.S. attorneys prosecute a minuscule percentage of marijuana violations, and they have very broad discretion to decide which ones are worth their time. Sessions rescinded Justice Department guidelines that said a violator's compliance with state law was one factor prosecutors should consider. The reasoning, as explained in a 2013 memo from James Cole, then the deputy attorney general, was that state-regulated marijuana businesses are less likely to impinge on "federal enforcement priorities" such as stopping interstate smuggling and sales to minors. Cole did not tell U.S. attorneys to leave state-legal cannabusinesses alone, but since 2013 they generally have. It's not clear whether Sessions' memo will change that. Sessions called the marijuana-specific guidelines "unnecessary" and said prosecutors should be guided by "the Department's well-established general principles." Last week the interim U.S. attorneys in Colorado and the Southern District of California, both Sessions appointees, said they would continue as before. But given Sessions' well-known opposition to marijuana legalization, his memo was widely seen as portending more aggressive enforcement of the federal ban. That prospect provoked bipartisan criticism from state officials and members of Congress, uniting Democrats who support drug policy reform with Republicans who support federalism. Sessions' boss counts himself in the latter group, and he has repeatedly applied the principle of state autonomy to marijuana. In July 2016, for instance, a TV reporter in Colorado Springs asked Donald Trump what he thought about using federal power to shut down the state-authorized cannabis industry in states such as Colorado. "I wouldn't do that, no," Trump replied. "I'm a states person. I think it should be up to the states, absolutely." That position is broadly popular. Last summer a Quinnipiac University poll found that 75 percent of Americans, including 59 percent of Republicans, opposed "enforcing federal laws against marijuana" in the 29 states that "have already legalized medical or recreational marijuana." Refraining from such interference also happens to be what the Constitution requires. Under the 10th Amendment, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Unlike alcohol prohibition, the national marijuana ban was never authorized by a constitutional amendment. Its purported legitimacy instead relies on reading the power to regulate interstate commerce so broadly that it accommodates nearly anything Congress wants to do. In 2005 the Supreme Court said the Commerce Clause covers every last speck of cannabis in the country, even if it never crosses state lines, down to the plant in a cancer patient's closet or the bag of buds in her nightstand. "If Congress can regulate this under the Commerce Clause," noted dissenting Justice Clarence Thomas, "then it can regulate virtually anything—and the Fede[...]

4 Things Congress Can Do to Stop a Cannabis Crackdown

Mon, 08 Jan 2018 13:50:00 -0500

Last week Attorney General Jeff Sessions provoked bipartisan protests from members of Congress when he rescinded Obama administration guidelines discouraging U.S. attorneys from prosecuting state-legal marijuana suppliers. The move united progressive Democrats who support drug policy reform with conservative Republicans who believe in federalism (especially if they happen to represent one of the 29 states that have legalized marijuana for medical or recreational use). Legislators, of course, can do more than complain; they have the power to resolve the conflict between state and federal law in this area more definitively than Justice Department memos ever could. Here are some of their options. 1. Spending Rider Since 2014 a spending rider now known as the Rohrabacher-Blumenauer amendment has prohibited the Justice Department from interfering with the implementation of state medical marijuana laws. According to the U.S. Court of Appeals for the 9th Circuit, the rider means the DOJ may not prosecute people for marijuana-related conduct that complies with state law, even in cases initiated before the rider was passed. The rider must be renewed every fiscal year, and Sessions has urged Congress not to do so, saying it unwisely constrains prosecutorial discretion. The amendment, which was extended through January 19, will expire after then unless it is included in the overdue omnibus spending bill for this fiscal year. As currently written, the Rohrabacher-Blumenauer amendment does not protect state-licensed marijuana suppliers who serve recreational customers. In light of Sessions' decision, there is a decent chance that an expanded version of the rider, covering all state marijuana laws that depart from prohibition, will be included in the next omnibus spending bill. But the rider would last only until the end of the current fiscal year, after which it would have to be renewed again. It is also possible that other federal appeals courts will read the rider more narrowly than the 9th Circuit has (although that circuit does include five of the eight states that have legalized marijuana for recreational use). 2. Respect State Marijuana Laws Act Recognizing the uncertainty caused by the limited duration and scope of his spending rider, Rep. Dana Rohrabacher (R-Calif.) is also sponsoring the Respect State Marijuana Laws Act, which he and Rep. Justin Amash (R-Mich.) first introduced in 2013. The act is admirable in its simplicity, declaring that the provisions of the Controlled Substances Act dealing with cannabis "shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana." The current version of the bill, introduced last February, has two dozen cosponsors, including 12 Republicans. It may pick up more support thanks to Sessions. "Because of @jeffsessions actions," Rep. Rod Blum (R-Iowa) tweeted on Friday, "I'm joining the 'Respect State Marijuana Laws' bill. I believe in States' Rights & I've seen how cannabis derived medicines can stop seizures in a child, help a veteran cope with pain, or provide relief to a senior with glaucoma." 3. Ending Federal Marijuana Prohibition Act The Ending Federal Marijuana Prohibition Act, which was introduced by Rep. Thomas Garrett (R-Va.) last February, is somewhat more ambitious than Rohrabacher's bill but would have much the same practical effect. Rather than carving out exceptions to the federal ban, it removes marijuana from Schedule I of the Controlled Substances Act entirely while criminalizing its importation into states where it remains illegal. The bill has 15 cosponsors, including five Republicans. 4. Marijuana Justice Act Like Garrett's bill, the Marijuana Justice Act, which was introduced by Sen. Cory Booker (D-N.J.) last August, would deschedule marijuana. It also includes provisions expunging federal marijuana possession conviction[...]

Washington, California Trying to Punish Businesses that Overly Cooperate with Feds on Immigration

Mon, 08 Jan 2018 13:30:00 -0500

Can a state government punish a private business for voluntarily cooperating or assisting federal officials in enforcing federal immigration laws? We may find out in both Washington State and California, as the conflict between the states and the feds over immigration enforcement heats up. In Washington, state Attorney General Bob Ferguson is suing Motel 6. The budget national hotel chain got some media attention last fall after employees told the Phoenix New Times in Arizona it was quietly sending the names of its customers to Immigration and Customs Enforcement (ICE) officials so they could possibly track down people staying there who were in the country illegally. In a statement after filing suit, Ferguson says they found that Motel 6 locations in Washington State were also cooperating with ICE and passing along "the personal information of at least 9,151 guests to ICE, even though its privacy policy assured consumers it would protect this information." Ferguson says Motel 6's cooperation is a violation of the customers' privacy in that they did so without a warrant or subpoena and that their cooperation was based on the perceived national identity of guests (meaning they suspected they were from outside the country based on name and ethnicity). Ferguoson says these acts violate Washington's privacy and discrimination laws and the state's constitution. The reference to Washington's state constitution is relevant because the state has its own privacy laws. Historically, our private information as citizens does not have the same Fourth Amendment protection from unwarranted searches when it's held by a third party (like a hotel). It's known as the third-party doctrine, is based on Supreme Court precedents from the 1970s, and plays a huge role in the various legal challenges and fights to stop unwarranted surveillance and access to our phone and computer data. States are certainly permitted to establish stricter boundaries that restrain local and state police from accessing third-party data about private people without warrants. In fact, that's awesome. And that's what Washington State has done. But attempting to force private companies from following those guidelines in their interactions with federal officials takes the law to a different place. ICE is not constrained by Washington State's privacy laws when collecting third-party information. But is Motel 6 when communicating with ICE officials? We may end up seeing more cases just like this thanks to new laws in California that came into effect with the new year. California has implemented a new law that prohibits private employers from voluntarily consenting to allow federal immigration officials to search "nonpublic areas of a place of labor" if they do not have a warrant. It further forbids employers from voluntarily allowing immigration officials access to employee records if the officials do not have a warrant or subpoena. Fines for violating this law range from $2,000 to $10,000 per incident. That California implemented such a law is itself rather fascinating—and a sign of what resistance to the Trump administration leads to—because just three years ago the state was insisting that its own law enforcement officers did have a limited right to access registries of hotel guests without having to get warrants. The case of Los Angeles v. Patel went all the way to the Supreme Court, and the court ruled 5-4 that the Los Angeles Police Department could not demand access to a hotel's guest registry without at least allow the hotel an avenue for appeal. Here's a fun twist: Former California Attorney General Kamala Harris (now a senator) took the side of the City of Los Angeles and the LAPD to engage in unwarranted collection of hotel guest registries for crimefighting purposes. Her office submitted an amicus brief to the Supreme Court encouraging them to find for the city. But now that the Trump administrati[...]

The Rule of Law Supports Marijuana Federalism

Sun, 07 Jan 2018 10:30:00 -0500

On Thursday, Attorney General Jeff Sessions announced that he was rescinding all of the Obama administration's enforcement guidance that had foresworn enforcement of the Controlled Substances Act against marijuana that was legal under state law.

There has been plenty of criticism of Sessions's new position, including from my co-bloggers Ilya and Jonathan here. One major line I've seen in defense of Sessions's action is that his position is truer to the rule of law: Maybe Congress should decentralize marijuana policy, the argument goes, but until it does the executive branch should be enforcing the law, not suspending or dispensing with ones it thinks are unwise.

As a general principle, I think there is a lot to that. But in this case, I do not think the rule of law requires the renewed enforcement of the Controlled Substances Act, and if anything requires the opposite. My reasons are detailed in my three-year-old paper on marijuana federalism, State Regulation and the Necessary and Proper Clause, but there are two key points:

First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. Congress's enumerated powers are to regulate interstate commerce, and to pass laws necessary and proper to carrying that interstate regulation into effect.

This means that Congress can ban the interstate drug trade, and it can also police in-state drugs that would spill over into interstate commerce. But that does not mean all in-state drugs. It depends on the circumstances in each state, and it especially depends on how each state regulates the drug and polices possible spillovers. The Supreme Court dismissed the role of states in a footnote in Gonzales v. Raich, but it was wrong to do so.

Second, the attorney general does not have to and should not adopt the Supreme Court's reasoning in Raich as federal law enforcement policy. Members of the executive branch have their own obligation to interpret the Constitution, and if a federal law is unconstitutional in part then the executive branch, no less than the courts, should say so. It is the Constitution, not the Court, that is the ultimate rule of law in our system.

So to be most consistent with the rule of law, what Attorney General Sessions should have done would have been to revise the Obama administration's enforcement guidance so that it was based on the Constitution -- on the limits of federal power to reach wholly in-state activity -- rather than on sheer policy discretion.

I understand the instinct to be wary of excessive executive discretion in law enforcement. But we should not forget that the Constitution is one of the laws that the executive enforces -- and hopefully, above all others.

As Sessions Moves Against State-Legal Weed, Vermont Lawmakers Approve Marijuana Bill

Fri, 05 Jan 2018 15:55:00 -0500

Just hours after Attorney General Jeff Sessions signaled a shift in how the federal government would view state-level laws legalizing the production, sale, and possession of marijuana, Vermont took a step toward becoming the ninth state to legalize weed for recreational purposes. The Vermont House voted 83–61 last night to approve a bill legalizing the possession of marijuana, sending the measure to the state Senate where, according to local media reports, it is expected to pass. The bill does not legalize buying and selling pot. A previous effort that would have created a market for recreational marijuana was vetoed last year by Republican Gov. Phil Scott. The bill approved Thursday is supposed to be a compromise with the governor's office, according to the Burlington Free Press, but Scott has not yet indicated whether he will sign the bill. In the meantime, neighboring New Hampshire could move a marijuana legalization bill this month. Coming as it did in the hours after Sessions announced plans to rescind the Cole Memo—the Obama-era guidance that essentially told federal prosecutors to leave marijuana businesses alone in states that had voted to legalize—it's easy to interpret the Vermont vote as an immediate flexing of federalism. But in reality, the Vermont bill has been subject to months of negotiations in Montpelier and the timing is coincidental. Indeed, some lawmakers suggested postponing yesterday's vote in light of the developments in Washington, the Free Press reports. Still, Vermont's movement on marijuana is potentially important for two major reasons. First, legalizing via legislation is an important shift in how states handle marijuana policy. Just as politics are downstream from culture, legislatures are downstream from voters' desires. Data from the Pew Research Center show that 61 percent of Americans now favor legal recreational marijuana, up from just 33 percent at the turn of the century. Even as those numbers have steadily ticked upwards, and even as voters have repeatedly demonstrated their preference for legal weed via referendum, state lawmakers have been unwilling to put their names on the line and vote for marijuana legalization. This week's developments in Montpelier suggest that voters' preferences and public opinion about marijuana are finally filtering down to statehouses. Secondly, the bill's success even in the wake of Sessions' announcement could signal a backlash against the Trump administration that—counterintuitively—might boost the chances of legalization in other places. Tom Angell, editor of the online trade publication Marijuana Moment, points out that opposition to Sessions' move has come from all sides of the political spectrum. "Democratic and Republican House and Senate members who almost never talk about marijuana, except when asked about it, proactively released statements pushing back against Sessions," Angell writes. By trying to launch a crackdown, Sessions might finally force a resolution to the murky gray area between state and federal marijuana laws. Legislators as geographically and ideologically diverse as Rep. Rob Blum (R-Iowa) and House Minority Leader Nancy Pelosi (D-Calif.) reacted to Sessions' announcement by calling for the feds to leave state-legal weed alone. And Sen. Cory Gardner (R-Colo.) announced he would delay nominations for Justice Department officials until Sessions offered a better explanation about what the policy shift will mean for states that have already legalized weed. In many ways, the GOP backlash is more important than the actions of blue-staters like Pelosi or the Democrat-controlled Vermont legislature. For one, it's a signal that even some Republicans believe Sessions has stepped out of line. More importantly, Republicans control the vast majority of state legislatures and governorships at the moment. If there's g[...]

Did Jeff Sessions' Marijuana Memo Restore the Rule of Law?

Fri, 05 Jan 2018 15:15:00 -0500

Attorney General Jeff Sessions said the memo on marijuana enforcement he issued yesterday represented "a return to the rule of law." White House Press Secretary Sarah Sanders offered the same spin, telling reporters "the president believes in enforcing federal law...regardless of what the topic is, whether it's marijuana or whether it's immigration." But the the question for U.S. attorneys confronted by state-licensed marijuana suppliers was never whether they would enforce federal law; it was how they would enforce federal law. National Review's David French agrees that Sessions' action amounts to "a restoration of the rule of law and the end of yet another unconstitutional Obama policy that privileged executive power over the American constitutional structure." He argues that the Obama administration tried to achieve through executive action what only Congress can do: repeal the federal ban on marijuana (a move that French supports). French is surely right that the Obama administration's prosecutorial restraint, as a solution to the conflict between state and federal marijuana laws, was vastly inferior to legislation making the federal ban inapplicable to people who comply with state law. But even if U.S. attorneys use their discretion differently in response to Sessions' memo (and it's not clear they will), they cannot avoid picking and choosing among cases, because it is impossible to "enforce federal law" against all violators, or even a meaningful share of them. Marijuana enforcement is primarily a state responsibility, with the feds accounting for less than 1 percent of arrests. U.S. attorneys have never prosecuted more than a minuscule percentage of federal drug law violations. They have always had to decide which drug cases were worth pursuing, and they have always had very broad discretion in doing so, for better or worse. Those decisions became more complicated as more and more states opted out of marijuana prohibition, because the Justice Department could no longer count on state and local help in enforcing the federal ban. The DOJ never had the resources to enforce marijuana prohibition on its own, and now it has to be even pickier in selecting its targets. The Obama administration's approach to this issue was a study in ambiguity. It could not simply announce that state-licensed marijuana growers and distributors, who openly commit federal felonies every day, would not be prosecuted as long as they complied with state law. Instead the guidance that Deputy Attorney General James Cole gave in 2013, which Sessions rescinded yesterday along with four related memos, said compliance with state law was one factor to consider in choosing marijuana cases. His reasoning was that oversight by "a strong and effective state regulatory system" makes it less likely that a marijuana supplier's activities will implicate "federal enforcement priorities" such as preventing violence, sales to minors, interstate smuggling, and "adverse public health consequences." Cole did not tell U.S. attorneys to leave state-legal marijuana businesses alone. "The existence of a strong and effective state regulatory system, and an operation's compliance with such a system, may allay the threat that an operation's size poses to federal enforcement interests," he said. "Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department's enforcement priorities listed above. Rather, prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system." Cont[...]

‘The War on Pot…Has Affected Millions of Lives in This Country Negatively’

Thu, 04 Jan 2018 22:25:00 -0500

(image) "Whenever this topic comes up," Fox Business Network host Charles Payne said today, while kicking off a segment about the Attorney General Jeff Sessions' new marijuana enforcement guidelines, "everyone says, 'Let's grab Matt!'"

I am always happy to talk about America's shameful, life-mangling War on Drugs with anyone, on any network, from any continent. Especially on days like today, when an announced decision by a powerful politician reminds us of how arbitrary the lines are between freedom and oppression when government decides to police what individuals choose to put into their own bodies. In this clip, which also includes Washington Times columnist Madison Gesiotto, I respond to Payne's question about whether we should weigh post-legalization safety stats in states such as Colorado by saying, "The War on Drugs—and the war on pot, which is a significant part of it—has affected millions of lives in this country negatively. I look at that as being more significant than a slight uptick or downtick in any macro kind of economic indicator." The whole exchange, including Rick James references, below:


Jacob Sullum, who has forgotten more about drug laws than every TV anchor knows combined, explained in detail earlier today how "On paper, Sessions' memo does not change DOJ policy." At The Volokh Conspiracy, Ilya Somin characterized it is as a "limited, but potentially dangerous step." And Damon Root also reminded us about the awful, Sessions-enabling 2005 Supreme Court decision (which itself is a cautionary tale about how the War on Drugs leads directly to restrictions on liberty that have zero to do with getting high).

More in this space tomorrow.

Jeff Sessions Escalates the Federal War on Marijuana - and his Assault on Federalism

Thu, 04 Jan 2018 21:40:00 -0500

Earlier today, Attorney General Jeff Sessions announced that he will rescind an Obama-era Justice Department policy limiting federal prosecution of marijuana users and distributers in states that have legalized cannabis. For reasons well-summarized by co-blogger Jonathan Adler, this is a bad decision on both policy and legal grounds. In the short run, the impact may be relatively minor. The Obama policy offered far from complete protection to cannabis businesses. To the contrary, as I explained back when the policy was first instituted in 2013, it included numerous exceptions that in practice allowed federal prosecutors to go after almost any marijuana producer they had a strong desire to target. Because federal law enforcement resources are limited and the federal government often relies heavily on state and local cooperation in drug cases, it is unlikely that the Justice Department will be able to target more than a small fraction of the new legal cannabis industry. Nonetheless, the Sessions policy reversal is potentially very important. At the very least, it signals a new, more aggressive federal posture towards states that have legalized marijuana. The Attorney General's new stance is a signal to federal prosecutors and law enforcement officials that the Justice Department supports stronger efforts to undercut legalized marijuana markets in the states. If Sessions did not intend to send such a signal, there would have been little point to his action. And while the feds may not have the resources to go after the vast majority of marijuana sellers, even targeting a few could have a major chilling effect. Businesses will be reluctant to operate in the open if there is even a modest chance that the feds will target them, subjecting the owners to the risk of losing their investment and facing prison time. That may be even more true for investors and financial institutions that work with this newly legal industry. Since 2012, eight states have legalized recreational marijuana, including such major ones as California (where legalization has just gone into effect), Colorado, and Massachusetts. Legal businesses involved in selling marijuana may be reluctant to do so if they face a potential federal crackdown - even one that is unlikely to directly impact the majority of them. This in turn, could drive much of the marijuana industry back in to the black market, where it would once again promote violence and organized crime of the sort that have been a major product of the War on Drugs. Jeff Sessions likes to pose as a great scourge of criminal drug gangs, such as MS-13. But such gangs are likely to be among the major beneficiaries of his efforts to renew the federal war on marijuana. Sessions' new marijuana policy should be considered in conjunction with his expansion of asset forfeiture, policies that allow the government to confiscate property that may have been used in the commission of a crime, even if the owner has never been convicted or even charged with any offense. If the feds target newly established marijuana businesses in states that have legalized pot, they can use civil asset forfeiture to seize the owners' property, even if those owners are not convicted of a crime. The prospect of such treatment could potentially be a major deterrent to participation in the marijuana industry. Like his asset forfeiture policy and his attack on sanctuary cities, Sessions' effort to target marijuana in states that have legalized it is an assault on constitutional federalism, as well as terrible policy. It undermines state autonomy on a policy issue where there is little, if any justification for federally imposed uniformity. Admittedly, as Damon Root points out, the policy is consistent with a series of dubious Supreme Court decision[...]

Sessions Still Is Not Leading a Cannabis Crackdown

Thu, 04 Jan 2018 14:50:00 -0500

Today Attorney General Jeff Sessions rescinded a 2013 Justice Department memo that signaled a policy of prosecutorial restraint for state-licensed marijuana businesses. Rather than suggesting to U.S. attorneys how they should decide which marijuana cases to pursue, Sessions is letting them decide for themselves. Although that move reflects Sessions' well-known opposition to marijuana legalization, it is not clear how big an impact it will have on the cannabis industry, because federal prosecutors have always had broad discretion but limited resources in this area. "Given the Department's well-established general principles," Sessions writes in a one-page memo he sent U.S. attorneys today, "previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately." He is referring mainly to a 2013 memo in which James Cole, then the deputy attorney general, said U.S. attorneys, in deciding whether to target marijuana suppliers who comply with state law, should be guided by "certain enforcement priorities that are particularly important to the federal government." Cole listed eight priorities, including the prevention of interstate smuggling, sales to minors, and drugged driving or other "adverse public health consequences." He added that "nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest." On paper, the Cole memo left U.S. attorneys free to prosecute state-legal marijuana growers and distributors, as long as they could invoke an important federal interest. That would not have been hard, given the breadth of the goals specified by Cole and his warning that the list was not exhaustive. But in practice, U.S. attorneys since 2013 generally have refrained from targeting marijuana businesses unless they violate state as well as federal law. Sessions could have tried to change that without rescinding the Cole memo. As a senator and as attorney general, he has said the memo provides sound prosecutorial guidance while suggesting that it has not been applied as aggressively as it should have been. He could easily have defended a broad cannabis crackdown based on the priorities Cole listed. Every marijuana merchant, for example, arguably contributes to drugged driving and underage consumption (through diversion from adult customers if not through lax ID checks), so shutting down the biggest operations through prosecution or forfeiture fits comfortably within the contours of the Cole memo. But Sessions has not attempted anything like that. On paper, Sessions' memo does not change DOJ policy. By his own account, it merely eliminates gratuitous guidance that was already implicit in the DOJ's "well-established general principles." The question is whether U.S. attorneys will now be more inclined to go after the many highly conspicuous, state-licensed marijuana suppliers who are openly committing federal felonies every day. Although the Justice Department does not have the resources to prosecute all of them, a few raids, or even a few threatening letters, would seriously disrupt the industry. It's not clear that's what Sessions wants to see, notwithstanding his strong anti-pot prejudices. Most Americans think marijuana should be legal, and an even larger majority, including most Republicans, says the decision should be left to the states. Sessions' boss, who is already irked at him because of the Russia investigation, has repeatedly said states should be free to legalize marijuana for medical or recreational use (although he is less enthusiastic about the latter option). Marijuana is legal for recreati[...]

Will AG Sessions Make Federalism Go Up in Smoke?

Thu, 04 Jan 2018 11:17:00 -0500

Several news outlets are reporting that Attorney General Jeff Sessions will rescind the Department of Justice memoranda providing that the federal government would largely eschew enforcement of federal marijuana laws against those acting in compliance with applicable state laws, unless there is a threat of trafficking, diversion, or juvenile access. [Update: The memorandum from AG Sessions announcing the new policy is here.] The move is almost certainly prompted by the decision of California voters to legalize possession and recreational use of marijuana within the state. That law took effect at the beginning of this year. The Attorney General has the authority to reorient federal enforcement priorities in this way, but I believe that is a mistake. Given the breadth of federal criminal laws, the Justice Department must prioritize its limited enforcement resources. A logical way to prioritize enforcement efforts is to focus federal resources on those crimes that implicate distinctly federal interests (such as interstate trafficking) or that are difficult for state and local authorities to handle on their own (such as some complicated financial crimes and matters that cross state lines). Such an approach is not only more efficient, it is also consistent with the underlying constitutional structure, in which the federal government has limited and enumerated powers -- including the power to regulate commerce "among the several states" -- and in which general police power is reserved to the states. The Cole memorandum issued during the Obama Administration was largely consistent with this sort of federalist principle. If anything, this memorandum did not go far enough. Ideally, Congress would reform federal drug laws to facilitate state experimentation while also protecting states in which prohibition is maintained from any excesses of their neighbors. (Note to members of Congress poised to criticize AG Sessions: Why don't you do your job and push legislation to address this issue?) AG Sessions decision may satisfy some parts of the conservative base, but it will do little to control drug use, and much to destabilize a nascent industry -- as well as to drive more of the marijuana business underground and into the hands of organized crime. (It's also likely to hurt the Republican Party's political prospects, particularly with younger voters.) It's both bad policy and bad politics. (And, insofar as it's based upon the Supreme Court's unfortunate decision in Gonzales v. Raich, it's bad law too.) The underlying legal and policy issues remain the same as when I last blogged on this subject in August. With that in mind, I reproduce my August 14 Volokh Conspiracy post, "Will Marijuana Make Federalism Go Up in Smoke?" below (free of any paywall). During the campaign, Donald Trump endorsed medical marijuana and said pot legalization "should be a state issue, state-by-state." Attorney General Jeff Sessions, on the other hand, is a fierce opponent of marijuana and has opposed measures that would limit the federal government's ability to interfere with state decriminalization efforts. Last month, Sessions reiterated the federal government's authority to enforce federal drug laws "regardless of state law," and some fear he will resist congressional efforts to protect medical marijuana from federal drug laws. Yet Sessions is not the greatest threat to continuing state-level marijuana reform efforts. Lawmakers and citizen initiatives have successfully reformed marijuana laws in a majority of states. Twenty-nine states allow for the medical use of marijuana, according to the National Conference of State Legislatures. Eight have legalized marijuana possession and use altogether, allowing for r[...]

Demise of Trump Voter Fraud Commission Is a Victory for Federalism

Thu, 04 Jan 2018 10:20:00 -0500

Yesterday, the White House announced that President Trump has issued an executive order shutting down his Presidential Advisory Commission on Election Integrity, which was planning to investigate alleged voter fraud around the country. The Commission was headed by Vice President Mike Pence (chair of the commission) and Vice Chairman Kris Kobach, the highly partisan Secretary of State of Kansas known for initiating dubious prosecutions, and promoting highly restrictive voting laws. Kobach oversaw most of the commission's activities. The White House statement accompanying the order said that Trump decided to shut down the commission because "many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry." The statement also noted that Trump chose not to "engage in endless legal battles" to get the states to turn over the information - a strong indication that the administration probably expected to lose many of those battles. Forty-four states, as well as the District of Columbia, rejected some or all of Kobach's demands that they turn over information such as the names, addresses, party registrations, and last four digits of Social Security numbers of voters. State officials cited concerns about privacy and state sovereignty as reasons to reject the Commission's demands. The objecting states included many with Republican-controlled state governments. Mississippi GOP Secretary of State Delbert Hosemann suggested that the Commission should "go jump in the Gulf of Mexico and Mississippi is a great State to launch from." He rejected the request because "our State's right to protect the privacy of our citizens by conducting our own electoral processes." State governments' successful resistance to the Commission's demands is a victory for privacy, and also for federalism as a constraint on overreaching by the federal government. It is dangerous to trust the feds with sensitive information on voters across the country - especially, but certainly not exclusively, when the presidency is held by a man with as little respect for civil liberties as Trump. This issue, along with others such as the litigation challenging the administration's efforts to punish sanctuary cities, is an example of how state and local governments (many of them liberal Democratic ones) are using federalism to resist Trump. In many cases, the legal doctrines in question were first developed by conservative judges, often over the bitter opposition of the left. Perhaps these cases will help lead the left to rethink some of their traditional skepticism about federalism and judicial enforcement of constitutional constraints on federal power, as some liberals have already begun to do. At the same time, we should not be overly optimistic, as "fair weather federalism" is a longstanding problem on both sides of the political spectrum. Most election law experts believe that in-person voter fraud is extremely rare, and that there is no evidence support Trump's claims that it is widespread, and accounted for his loss of the popular vote in the 2016 election. But even if you believe it is a more serious problem than most experts conclude, a commission headed by a highly biased figure like Kobach was hardly the right way to seek solutions. Moreover, subject to the constraints imposed by constitutional rights, the Constitution leaves most issues of election administration to state governments. It is they who should deal with voter fraud. Federal control over election procedures would potentially enable the party that controls Congress and the White House to bias voting rules around the country in its own favor. Similar[...]