Why the Feds Are Unlikely to Respect Washington and Colorado

The recent ballot initiatives that allow recreational cannabis use in Colorado and Washington have been welcomed by many folks as a sweeping change in American drug policy. To the extent that the initiatives represent a shift in popular conception of cannabis use, I join the general enthusiasm expressed by libertarians and a several on the Left. However, the Obama Administration has shown no substantive will to rein in the federal Drug War and until it does, these measures can only be viewed as partial victories in those two states. Moreover, many supportive commentators seem overly optimistic of what is likely to happen, perhaps based on misplaced assumptions of how the Drug War is fought.

Quoting Mark Kleiman, co-author of Marijuana Legalization: What Everyone Needs to Know, MoJo's Kevin Drum writes:

[Kleiman:]The federal government could shut down both of those experiments, if it were determined to do so....But it would make it impossible to learn anything useful from the Colorado and Washington experiments.

So why shouldn’t the federal government cut Colorado and Washington some slack? As long as those states prevent marijuana grown under their laws from crossing state lines and thereby subverting marijuana prohibition in the rest of the states, the Justice Department could step back and let the consequences of the new policies play themselves out. They might succeed, or they might fail. In either case, the rest of us could learn from their experience.

I doubt that either state can effectively prevent locally-grown marijuana from crossing state lines, but hell, they can't prevent it now either. So I'm with Mark: there's no need to announce any public change of policy, but Obama should tell DEA to lie low for a while and see how Colorado and Washington do. A controlled experiment like this is the best way of finding out the effect of full legalization of marijuana. Does it lead to higher consumption? Is it a gateway drug? Will it reduce consumption of alcohol? (emphasis mine)

There are three main problems with this excerpt. 

 

First, Professor Kleiman's question rests on the assumption that the federal government has any desire to see how the “experiments” play out. As I've noted before, the DEA effectively prohibits experimental research on cannabis in a controlled environment by anyone but the National Institute on Drug Abuse, a government agency. Cannabis, as explained in Kleiman's book, is the only illicit drug that is off-limits to non-governmental researchers that are open to positive value in cannabis use. There is no reason to believe that while the DEA won't allow literal experiments by scientists in a lab, they would be amenable to whole states being substituted as figurative laboratories. As a drug researcher, he knows this, but this sort of 'why not?' obscures the hurdles the government  institutes to hamper the “science” the ONDCP is so fond of citing to support their policies.

Second, Drum assumes that cannabis would need to cross state lines to violate the Interstate Commerce Clause of the Constitution to enter the federal jurisdiction—a perfectly reasonable belief. Unfortunately, this is not how the Supreme Court has ruled...twice. In Wickard v. Filburn (1942), the New Deal Court ruled that a farmer who set aside wheat for his own family's use could be regulated—read, “prohibited”—by the federal government of the Interstate Commerce Clause. More recently, in Gonzales v. Raich (2004), the Court ruled—with Republican-appointed Justices O'Connor, Rehnquist and Thomas dissenting—that cannabis grown by a terminally ill individual in accordance with state law for one's own medical use violated that very same Interstate Commerce Clause because by not participating in a (prohibited) interstate market, you affect demand. Not coincidentally, this tortured reading of the clause was cited in just nearly (if not) every single brief supporting the government in the Health Care Cases (2012). In short, much of the Left's economic and legal agenda rides on the federal government asserting power, via the Commerce Clause, into any aspect of our economic and personal lives. That Obama's Administration would find a new respect for federalism for cannabis is laughable...literally.

Third, and perhaps most important, it's not only the DEA that needs to stand-down. The U.S. Attorneys in every federal jurisdiction in the country have very wide latitude on whom they prosecute and for what offense. As you may recall, early in the Obama Administration, Attorney General Holder said publicly, backed-up by what is known as the “Ogden Memo,” that the DOJ would no longer consider raiding medical cannabis facilities that complied with state law a priority. Since then, the DOJ has increased raids on those same facilities, sometimes with the help of municipal authorities who don't agree with state law. If a public directive is so willfully ignored, there's little to suggest private encouragement would meet a different fate, particularly in the Eastern District of Washington.

Matt Yglesias, in a post that has a much more realistic view of the new regime, still errs a bit:

“The DEA obviously can't police low-level retailing, so if states and localities say it's legal it'll be a lot simpler in practice to get some pot.”

On the facts of the matter, Matt is correct. There will be no DEA patrols going through neighborhoods looking for cannabis. That said, it has been and continues to be very easy to “get some pot” all across America. Most cannabis users (and dealers, for that matter) simply aren't caught. The Drug War isn't a failure because you can still get some drugs under some circumstances—the failure lies, in part, in the fact drugs are still virtually ubiquitous despite draconian enforcement efforts. Further, the feds are not above using relatively low-level stings to get convictions—they know most offenders are going to plea out. Indeed, they don't even need to charge anyone at all to intimidate a low-level user ignorant of federal law into cooperation. Then, all they need is an inside-lead to a small group of people who have a common connection to drugs—say a commune or even a co-op—and prosecutors may attach the word “conspiracy” to add the cannabis together to reach federally chargable amounts. If any of those people have otherwise legal and unrelated guns on the premises, the charges really start to mount up. A small dispensary or a self-sustaining bunch of hippies can become a target of an ambitious U.S. Attorney—and it's all over. Though hypothetical, it's not at all unreasonable to think this sort of thing will happen—the track record against medical cannabis facilities proves that. I'm sure the DOJ has its stable of confidential informants ready and willing to work under new rules.

So I join Yglesias and Drum with a cautious optimism that this will make life better for cannabis users in Colorado and Washington. But we should not fail to mention that this will not deter federal law enforcement from prosecuting state-legal activity. That enforcement, though less harassing to the general public than state and municipal policing, will continue to ruin lives through incarceration and depriving the sick of relief. Indeed, it is hard to imagine the Administration that continues to deprive cancer and AIDS patients regular access to their medicine suddenly changing its tune now that Dave-O can load up his stash before a Phish show. If anything, I would expect heightened federal action against participants in the new regimes not long after they are put in place.

bellum medicamenti delenda est

"Made in the U.S.A." Is Not the Problem

I was watching the Senate Judiciary Committee's hearing today on the oversight of the Department of Justice. The sole witness was Attorney General Eric Holder, who would be called upon to answer for "Operation Fast and Furious," a failed DOJ/ Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) program that was meant to snare cartels in gun trafficking. I tweeted the first part of the hearing, but I wanted to discuss an op-ed by two state attorneys general that Chairman Pat Leahy (D-VT) had put in the Congressional Record (courtesy of Emptywheel's @bmaz):

Congress and the media have understandably focused on the missteps of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in the “Fast and Furious” sting operation that allowed suspected “straw buyers” to purchase weapons and transport them to Mexico in order to build cases against drug cartels.

However, the covert operation was terminated abruptly after its possible connection to the tragic death of Border Patrol Agent Brian Terry was revealed. Unfortunately, most of the recent criticism about the operation seems to be serving as a means to attack Attorney General Eric Holder and destroy the ATF, rather than to hold those behind Fast and Furious accountable.

The focus should be on the real public safety problem underlying this controversy: keeping arms from the Mexican drug cartels and protecting the security of the United States. However, many of the roadblocks faced by ATF and the Department of Justice are not being built by international criminals, but by Congress. (Emphasis mine)

The piece goes on to explain the prolific violence in Mexico and that 95% of the guns recovered from Mexican drug violence 'can be traced to the United States.' This sounds troubling, but it's really smoke and mirrors.

As I've detailed in the past, drug violence in Mexico is indeed rampant and unspeakably brutal. People are kidnapped, murdered, often tortured, strung up from overpasses, disemboweled, and/or beheaded. Does it really matter whether the murderers bought their ropes and machetes from stores in Tuscon or Tijuana?

It's the murderers, stupid.

If we could magically keep American guns out of the hands of the cartels, people would start being gunned down with a greater percentage of AK-47s sold in other countries than AR-10s made and sold in America, but they would still be gunned down. The cartels have planes, boats, and more than enough money to get whatever they want through their expansive networks. Making it marginally more difficult to acquire weapons may be good policy insofar as we want better, more sensible gun laws in this country, but it's hardly the "real public safety problem" facing our law enforcement agencies and the public at large.

The cartels make astronomical profits from selling the drugs banned by the United States' global prohibition policy. That money gets them access to the entire planet and all its terrible weapons that make their line of work so bloody. Ramped up interdiction efforts just make drug dealing more dangerous, but also more lucrative, and thus more enticing. So, when you think about it, the real public safety problem is the one that enables and incentivizes the cartels to commit heinous crimes in the first place: the Drug War itself.

Arguing about where the cartels bought their guns is like arguing the make of the bus that just hit you: it's trivial, at best, and probably a sign you have brain damage.

bellum medicamenti delenda est

UPDATE: This isn't meant to be a dismissal of the ineptitude that plagued Operation Fast and Furious. This was a post about the underlying problems, not the highly questionable tactics employed in that operation.