Rule of Law and Medical Marijuana

The U-T reported this morning on San Diego city government's failure to shut down illegal medical marijuana shops.  To be clear, there are currently no legal medical marijuana shops in the city.  

 The case is instructive on the results of the failure of the rule of law, including the failure to pass implementing laws that unwelcome, but legal activity to proceed.  Councilmember Ed Harris wants a process that shines the light of transparency on the efforts to close the illegal shops.

The proposal comes as the abundance of illegal dispensaries has begun adding turbulence to the already complex approval process facing applicants trying to open the city’s first legal pot shops. 

Part of that process, which began in April, is getting the blessing of neighborhood leaders who serve on community planning groups. But multiple planning groups have said frustration about illegal dispensaries in their area makes them less likely to embrace the legal dispensaries being proposed 

In both Pacific Beach, whereas many as 25 illegal dispensaries operate, and Mira Mesa, where there are roughly half a dozen, community leaders say the illegal pot shops are tainting the process of approving legal ones.

It has been almost 18 years since California passed Prop 215 which legalized medical marijuana sales and somehow we can't figure this out.  The interference of the federal government in shutting down pot dispensaries hasn't helped, after the unfortunate Supreme Court decision in Gonzales v Raich, which expanded the interstate commerce clause unnecessarily.  However, San Diego never really came to grips with how it was going to allow this unwelcome but lawful (under California law) activity.  But then, Mayor Filner made it worse, of course, by announcing that he would not enforce the zoning laws regarding the dispensaries, and wouldn't wait for the legislative process to work this out.  The result has been predictable; with the growth of illegal dispensaries to 100.  (This seems to be playing out on the southern border as the President's repeated insistence that he would grant various forms of amnesty unilaterally has provoked a humanitarian crisis.)

I can only hope that we can speed the process of allowing the legal permitting of dispensaries, so that neighborhoods feel that they are protected by law and have a voice in where the dispensaries are located.  My concern is that the slow wheels of bureaucracy will have the same effect as the illegal tactics of Filner, only illegal dispensaries operating.  Lack of clarity in the law, failure to allow a path ahead for what should be legal activity and a failure to enforce the law have led to this mess.

Making matters worse, the California state legislature has again failed to pass a bill that would impose statewide uniformity on medical marijuana and further normalize the business.

Photo credit: "Medical-marijuana-sign" uncropped image from Laurie Avocado. Licensed under CC BY 2.0 via Wikimedia Commons.

What You Should Be Reading

• Lots of military members angry at Ferguson law enforcement over tactics and paraphernalia heavier than what they used in Afghanistan.  See all the tweets. 
• Professor Perry has a host of great links on the Ferguson MO issue.  My favorite is from Nick Gillespie: Let’s Make Cops Wear Cameras – “Everyone behaves better when they’re on video.”  The situation Ferguson also has to do with the rule of law.
• KTCat continues to skewer the administration over its failure to deal with ISIS.

Medical Marijuana and Filner

I should have known.  First, let me say that I am in favor of all forms of legalizing marijuana, so of course, I am not opposed to medical marijuana.  I followed the link on this tweet from Craig Gustafson to read about Bob Filner's medical marijuana proposal:

Story on @bobfilnermayor 's med pot ordinance now with docs -- executive summary and actual ordinance language. bit.ly/ZagbXb
— Craig Gustafson (@gustafsoncraig) March 19, 2013

The linked U-T story opens with this paragraph:

Mayor Bob Filner is proposing an ordinance to allow medical marijuana dispensaries to operate in commercial and industrial areas for a $5,000 annual permit fee and a 2 percent city tax on sales.

It seems that Mayor Filner can't help himself but grab for more tax dollars even when doing something I agree with (see previous post on hotel tax).  However, given the fact that there is serious contention with the federal government over the issue, taxing the product provides an incentive for the city to help protect the dispensaries from federal action.  I don't know to what extent the city could help the dispensaries if the feds took action, but the accumulation of resistance to federal enforcement of marijuana laws, like is happening in Colorado and Washington, will eventually roll back this modern form of prohibition.

Ryan Gets It Right on Medical Marijuana

From the AP:

Republican vice presidential nominee Paul Ryan says the federal government shouldn't interfere with states that have legalized medical marijuana.

The Wisconsin congressman tells KRDO-TV in Colorado Springs that he personally doesn't approve of medical marijuana laws. But he says that states should have the right to choose whether to legalize the drug for medical purposes.

In response to a reporter's question, Ryan said: "It's up to Coloradans to decide."

I love his answer. Ryan is consistent on principle here. He recognizes that this isn't a federal issue and the same logic that leads to federal jurisdiction and harassment of medical marijuana use leads to arguments for the constitutionality of the ACA. I hope the younger generation that voted so enthusiastically for Obama, partly on the basis of this issue, now notes the aggressive stance the President's attorneys have taken against local pot dispensaries. Why don't I ever the occupiers complain against the Prez over this?

Prosecuting Medical Marijuana - O > W

The President has broken so many campaign promises, its hard to keep track. But it is hard to top the degree to which he has broken his promises regarding medical marijuana. Here is what Candidate Obama said in 2008.

"What I’m not going to be doing is using Justice Department resources to try to circumvent state laws on this issue simply because I want folks to be investigating violent crimes and potential terrorism. We’ve got a lot of things for our law enforcement officers to deal with.”

Of course, that promise has gone the way of other Obama promises. From the LA Times:

The federal government is moving to shut down the nation's largest and highest-profile medical marijuana dispensary operation, filing papers to seize properties in Oakland and San Jose where Harborside Health Center does business.
. . .
"The city of Oakland has developed a system to assure such distribution occurs according to state law in a fair and orderly process," Nancy Nadel, member of the Oakland City Council and vice mayor of the city, said in a statement. "It is most unjust to our citizen patients and distributors who have followed local guidelines to be harassed and treated as criminals by federal officials."

U.S. Attorney Melinda Haag, stated that she is targeting Harborside precisely because it is big. It is big, because it operates in an a trustworthy and above board manner. This appears to be consistent with the President's disdain for successful businesses. But, I digress.

Of course, where would administration lies and broken promises be without dissembling by the Attorney General.

"We limit our enforcement efforts to those individuals, organizations that are acting out of conformity with state law," Mr. Holder told a House Judiciary Committee oversight hearing.

As to that O > W comparison?

Many of California’s most prominent and well-respected medical cannabis dispensaries and related facilities — including Oaksterdam University, Berkeley Patients Group, and Harborside Health Center (HHC) — flourished under the George W. Bush administration. But they’ll be lucky to survive President Barack Obama’s first term,” writes NORML Deputy Director Paul Armentano.

For you conservatives who might not care about this issue, Gonzales v Raich is the precedent that allows the feds to prosecute dispensaries operating within state law. It was used as part of the constitutional argument made for Obamacare. That Justice Roberts called it a tax still means we are only one Supreme Court vote away from a unlimited federal power under the commerce clause. I am asking that conservatives and tea partyers make common cause with marijuana proponents; this is a state's rights and commerce clause issue. H/T for this article to StoptheDrugWar.

For those who might not be regular readers of this column or BeerswithDemo, Dean has developed a running list of areas of policy where Obama has exceeded Bush, and not in a good way. It started out as O=W, but soon Obama outdid the former President in so many negative ways.

Here is a sample list, to which we are adding the prosecution of medical marijuana issues.

losing Keeping open Gitmo.

Ending Formalizing the indefinite detention of suspected terrorists.

Ending Maintaining military tribunals.

Discontinuing Continuing other Bush-era policies like rendition, Project Gunrunner and TARP.

Ending Throwing into warp drive the politicization of the Justice Department under the leadership of the biggest hack in the administration.

Interpreting the Patriot Act to collect information on people via mobile phone geolocating

Engaging in an act of war against a country that posed no threat whatsoever to the U.S. with without the consent of Congress.

Swift Painfully slow response to national disasters.

Ending Maintaining the practice of signing statements.

For you visual types, how about a federal government - Goldman Sachs Venn diagram? (thanks, W.C. )

Signing off on predator drone strikes for the ostensible purpose of assassinating a foreign head of state. And then doing so.

Using executive orders and administrative actions and generally subverting the role of Congress in order to enact his agenda.

Shutting down Operating a seeming revolving door between the White House and Wall Street and K Street.

Signing legislation that would allow the military to indefinitely detain terror suspects, including American citizens arrested in the United States, without charge. Got 4th amendment? Not anymore, you don't.

Authorizing a program to assassinate American civilians.

Actually authorizing a drone strike hit that killed American-born Anwar al-Awlaki and Samir Khan (from this point forward, we never... never want to hear a peep about water-boarding)

And adopting another Bush-like tendency in combating the war on terror: refusing to provide the legal justification for the killing of U.S. citizens.

Obamacare, Medical Marijuana and the tea party

No this isn't an article about whether Obamacare should cover medical pot. If you thought so, I recommend reading up on this blog's agenda and purpose. Today's U-T reports that a group known as Citizens for Patient Rights plans to introduce a ballot measure that would regulate medical marijuana in the city. The plan would include zoning, and a tax structure to pay for regulation. It all sounds very un-libertarian, so why shouldn't the tea party movement be opposing this effort?

Thinking further into the unique circumstances that led to the need for this regulation, we find that it impacts Obamacare. Some background: currently, federal law prohibits dispensing marijuana for medical or any other purposes. U.S. attorney for San Diego, Laura Duffy has promised a vigorous prosecution campaign not only against the dispensaries, but against advertising outlets that take their business. Further, the city attorney is prosecuting the dispensaries for zoning violations. So, despite state law that permits the sale of medical marijuana, the dispensaries are at great legal and financial risk. The proposed initiative is part of a campaign to normalize the local law enforcement environment for the dispensaries. In fact, almost all businesses face forms of local regulation, so this effort supports a local outcome that would be similar to regulations facing liquor stores.

I support this effort at normalization, because it sets up legal challenge to the federal law under which the feds believe they can outlaw pot sales in California. The relevant Supreme Court decision is Gonzales v Raich, in which the Supreme Court held that the federal government had the right to prevent all marijuana cultivation and use, regardless of circumstance. This broad view of the interstate commerce clause, essentially gutted the 10th amendment. Some key quotes from the decision.

Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels,33 we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce … among the several States.” U.S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.

. . .limiting the activity to marijuana possession and cultivation “in accordance with state law” cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “ ‘superior to that of the States to provide for the welfare or necessities of their inhabitants,’ ”

The tie to Obamacare proceeds from this broad interpretation of the interstate commerce clause. It is an interpretation that we should profoundly desire to become unpopular. Overturning Gonzales v Raich in a future Supreme Court would further tea party goals of increasing individual liberty and limiting the power of the federal government. Volokh (always a great source for liberty leaning constitutional analysis) discusses a proposed bill put forward by Ron Paul and Barney Frank to repeal the federal law banning marijuana. The key insight regarding limiting federal power follows.

On the other hand, it is unfortunate that this essentially federalist bill hasn’t attracted any support from conservatives, especially the Tea party faction. After all, the bill does not require nationwide legalization, but merely leaves it up to each state to decide for itself. One of the main themes of the Tea Party is their insistence that the federal government has exceeded its constitutional bounds. The War on Drugs is a particularly extreme example of such federal overreach. Indeed, the federal ban on marijuana is responsible for Gonzales v. Raich, the Supreme Court’s broadest and most questionable interpretation of federal power so far (which I criticized in this article). Raich held that Congress’ power to regulate interstate commerce was broad enough to justify a ban on the possession of medical marijuana that had never been sold in any market or ever crossed state lines.

Every lower court decision upholding the constitutionality of the Obamacare individual mandate has relied heavily on Raich. In my view, the mandate goes even further than Raich did. But there’s no doubt that Raich makes life more difficult for mandate opponents. A political movement that is serious about constraining federal power cannot, consistent with its principles, support the present sweeping federal War on Drugs.

Normalizing marijuana regulation in the city provides a real life rebuke to the idea that we must depend on the federal government to regulate every aspect of national economic and criminal policy. It builds a coalition against the pervasive view of federal power contained in Gonzales. For that reason, the tea party movement should be supporting this initiative.

Why is This a Priority? Medical Marijuana Adverts to be Prosecuted

In another O > W moment, the U.S. Attorney for San Diego and Imperial counties, announced a crack down on publications that advertise medical marijuana. Flashback to 2009 and the administration was announcing that they were going to back off medical marijuana fights.

The government's top lawyer said that in 14 states with some provisions for medical marijuana use, federal prosecutors should focus only on cases involving higher-level drug traffickers, money launderers or people who use the state laws as a cover.
. . .
"it will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana."

I guess that advertisers who are letting those patients know where they can find the dispensaries aren't covered in that proclamation. Here is what U.S. Attorney Laura E. Duffy had to say.

. . . marijuana advertising is the next area she's "going to be moving onto as part of the enforcement efforts in Southern California." Duffy said she could not speak for the three other U.S. attorneys covering the state, but noted their efforts have been coordinated so far.

"I'm not just seeing print advertising," Duffy said in an interview with California Watch and KQED. "I'm actually hearing radio and seeing TV advertising. It's gone mainstream. Not only is it inappropriate – one has to wonder want kind of message we're sending to our children – it's against the law."

Of course, when it comes to deporting felons in this country illegally, there is prosecutorial discretion, but marijuana dispensaries, operating in accordance with state law are federal targets.

I wonder what the Occupy San Diego crowd thinks about this turn of events and how supportive of Obama they would be if they were aware.

As I have discussed before, I believe that ending drug prohibition is consistent with my tea party values. Further, this may not be the winning issue that the administration thinks it is. Gallup reports that the support for marijuana legalization is now at 50%.

Another reason to support Gary Johnson perhaps? Certainly he has been ahead of the curve on this issue.

Medical Obamawana and Obamacare

Don't get me wrong, I support the recent announcement by the U.S. Department of Justice that they will no longer seek criminal charges against users and suppliers of medical marijuana. If you are a federalist like me, you can appreciate that the federal government has no right to interfere with state law in this regard, as it has nothing to do with interstate commerce. Further, it seems absurd to waste federal resources on what is a local law enforcement issue.

But the hypocrisy of the move astounds me. First, Obama recently signed into law a ban on flavored cigarettes. The FDA now has regulatory powers over tobacco but no marijuana? How does this make sense in a rational world. Of course, the more amazing hypocrisy is the how this squares with the whole federal take over of all health care. The federal government is poised to take regulate every health decision that are now the purview of doctors, patients and insurance companies, but medical marijuana has been set free.