Prohibitionists are Overstating Feds vs. State Marijuana Legalization Case to Media

by David Borden, December 10, 2012, 02:54pm

Posted in:

A mostly great piece in Rolling Stone this weekend, "Obama’s Pot Problem," missed the mark on the federal preemption question — can the feds shut down Washington and Colorado’s legalized regulation systems? Tim Dickinson wrote the following on that subject:

[T]he administration appears to have an open-and-shut case: Federal law trumps state law when the two contradict. What’s more, the Supreme Court has spoken on marijuana law: In the 2005 case Gonzales v. Raich contesting medical marijuana in California, the court ruled that the federal government can regulate even tiny quantities of pot – including those grown and sold purely within state borders – because the drug is ultimately connected to interstate commerce. If the courts side with the administration, a judge could issue an immediate injunction blocking Washington and Colorado from regulating or taxing the growing and selling of pot – actions that would be considered trafficking under the Controlled Substances Act.

But a former Bush administration official quoted in the New York Times on Thursday, former DOJ civil division head Gregory Katsas, made the opposite prediction. Katsas was "skeptical" that a preemption lawsuit would succeed, according to the Times. Why? Perhaps because it’s not just that the feds can’t force states to criminalize drug possession, as Kevin Sabet selectively pointed out to Dickinson. It’s also the case that they probably can’t directly force the states to criminalize sales either. The Controlled Substances Act in fact leans against federal preemption of state drug policy, as pointed out in a law professors brief on preemption submitted in a California case this year.

Dickinson also pointed out that federal officials had used threats to prosecute state employees involved in implementing regulations for medical marijuana. In my opinion the US Attorney letters were deliberately vague — scary enough to influence state officials, but in most if not all cases stopping short of explicitly making that threat. A better piece of evidence, I think, is that in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to actually invalidate such a law in court, not even after the Raich ruling. Why not? They must not think they have a slam dunk case. And if preemption is not a slam dunk for medical marijuana, then it’s not a slam dunk when it comes to legalization either, although there are additional arguments to throw against full legalization.

The reality is that no one knows how this will turn out if it goes to court. Raich established that federal police agencies can use their powers in medical marijuana states to continue to criminalize marijuana federally, justified by the Interstate Commerce Clause. But that is not the same as having the power to forbid states from granting exceptions to the states’ own anti-marijuana sales laws, which in legal terms is what the regulatory frameworks do, and plenty of smart lawyers are skeptical that they can do that. This is not a slam dunk either way.


150 years ago in November 1862: The Civil War years Read more: – 150 years ago in November 1862 The Civil War years


Rome Area History Museum volunteer Dennis Nordeman is compiling notable local news items related to the Civil War in commemoration of the war’s sesquicentennial to be shared each week:
To explore further see scanned pdf documents of Rome’s Tri Weekly Courier.

Week ending date Saturday, November 15, 1862

“There has been some stealing, in a small way, going on in town lately, “ reported the Tri-Weekly Courier. “It would well for our citizens to secure their windows properly, and keep an eye on their wood piles.” Oct-Dec/nov 13 1862 thur.pdf

A case of small pox on a soldier in the Soldiers Relief Room was reported.  As some citizens were exposed before the nature of the disease was known and they were requested to remain indoors for the present.  Parents were requested to keep their children off the streets.  “And what is more important than all else, let every body – old and young – be vaccinated.” Oct-Dec/nov 15 1862 sat.pdf

Members of the 8th Regiment Georgia Volunteers who were staying home but “not on genuine furloughs” and are able for duty were to be arrested and jailed if they did not report to the enrolling officer according to a noticed published by J. R. Towers of that Regiment. Oct-Dec/nov 11 1862 tues.pdf

Week ending date Saturday, November 8, 1862
Correspondence from the 8th Georgia regiment stationed near Old Forge described what clothing the men would need for the upcoming winter.  “A change of under clothes, a comfortable uniform, an overcoat, two blankets and a pair of shoes, is all the clothing a soldier can take care of, even in winter, and if more is sent to him, the chances are at least, that he will loose [sic] the surplus.” Oct-Dec/nov 4 1862 tues.pdf
Correspondence from the Cherokee Artillery summarized their “weary pilgrimage up and down the State of Kentucky.”  It ended with:  “The object of our expedition into Kentucky remains shrouded in mystery.  We could easily have marched to and taken Louisville, after the battle of Perryville;…and we could have held the State during the winter…. Her sons were led to believe that her redemption was nigh; they are now disheartened…” Oct-Dec/nov 4 1862 tues.pdf
A concert of young ladies in the Cave Spring area was held for the benefit of the soldiers. “ The evening was a delightful one, and the proceeds satisfactory.”    In addition their citizens of Cave Spring resolved to raise local sales tax for the relief of the soldiers. Oct-Dec/nov 6 1862 thur.pdf
Major R. H. Moore and W. DeJournett published a proclamation from the Freemen of Floyd paying tribute to the memory those in their company that had died since they were organized in May 1862.  The names of Jasper Lumpkin, Dr. John Martin, and D. R. Mitchell, Jr. were listed in the proclamation. Oct-Dec/nov 8 1862 sat.pdf
Week ending date Saturday, November 1, 1862
As winter approached many articles in the Tri-Weekly Courier dealt with providing winter clothing for the troops and with the supply and price of salt which was critical for meat preservation.  The troops is Savannah reported that salt was going for $150 per sack and although there was no sea salt in the city it was selling “at the works at $22 per bushel.” Oct-Dec/oct 28 1862 tues.pdf

A recipe to make salt was also published which gave directions how to reclaim and recycle the salt from the soil beneath your meat house. Oct-Dec/oct 30 1862 thur.pdf

The first snow of the season was reported on Saturday October 25.  Although it had “melted by daylight, except what had fallen on the roofs of houses…. On Sunday morning the snow covered roofs, the cold, hard looking clouds and the cold wind, presented a decidedly wintry appearance.  It is now clear and cold.” Oct-Dec/oct 28 1862 tues.pdf

Captain Yarbrough, Lieut. John Harkins, Capt. Dunlap Scott were in town and were soliciting winter clothing for the men in their respective companies.  St. Peter’s Church announced a special collection for that purpose.

Word from Savannah and the Berry Infantry told about an engagement with Federal troops invading South Carolina and damaging railroad rails and telegraph  lines before being repelled.  “The loss on our side was small–The enemy’s more than double us.” Oct-Dec/oct 30 1862 thur.pdf

Click here to read ‘150 years ago in October 1862: The Civil War Years’

Read more: – 150 years ago in November 1862 The Civil War years

Secessionist leader: Texas should separate from Marxist states



The leader of a secessionist group in Texas said Tuesday that a petition on the White House website to separate the state from the nation is growing in popularity because the "union has fundamentally changed."

"The fact of the matter is, that there cannot be a union between those that esteem the principles of Karl Marx over the principles of Thomas Jefferson. Here in Texas, we esteem those principles of Thomas Jefferson — that all political power’s inherent in the people," Daniel Miller, president of the Texas Nationalist Movement, said Tuesday on Fox News. "What we have seen given on Tuesday was that a majority of the people in the United States, and the states in which they reside, esteem the principles of Karl Marx over those principles."

On the White House’s "We the People" website, a petition asking the administration to "Peacefully grant the State of Texas to withdraw from the United States of America and create its own NEW government" so far has more than 95,000 signatures (not all of them from Texans). The White House says it will respond to all petitions that within 30 days receive more than 25,000 signatures.

At least 47 states are represented by similar petitions, while others have started petitions in response to the secessionist requests. For instance, there’s a petition to "Keep the United States United," as well as a petition to "Peacefully grant the city of Austin Texas to withdraw from the state of Texas & remain part of the United States."

Miller told Fox News host Sean Hannity that he doesn’t expect the petition to do much more than "send a clear message." He does, however, want state lawmakers to take up the issue.

"Ideally what we would like to see is the legislature put it to a non-binding referendum," he said. "So the people of Texas could express their will on this issue. The polling we have done internally in our organization in every county in Texas shows we would carry a majority of Texas, but I think that takes us to the next step here."

Texas Gov. Rick Perry’s office has said the governor doesn’t support calls to secede, although he "shares the frustrations many Americans have with our federal government."

Republican Rep. Ron Paul, meanwhile, still believes that "it’s very American to talk about secession," given that the U.S. began with 13 colonies seceding from the British.


States Legalizing Marijuana Will Violate Federal Law, Trigger Constitutional Showdown: DEA, Drug Czars

The Huffington Post | By Matt Ferner Posted: 10/15/2012 3:13 pm EDT


On a Monday teleconference call, former Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy voiced a strong reminder to the U.S. Department of Justice that even if voters in Colorado, Oregon and Washington pass ballot measures to legalize marijuana use for adults and tax its sale, the legalization of marijuana still violates federal law and the passage of these measures could trigger a "Constitutional showdown."

The goal of the call was clearly to put more pressure on Attorney General Eric Holder to make a public statement in opposition to these measures. With less than 30 days before Election Day, the DOJ has yet to announce its enforcement intentions regarding the ballot measures that, if passed, could end marijuana prohibition in each state.

"Next month in Colorado, Oregon and Washington states, voters will vote on legalizing marijuana," Peter Bensinger, the moderator of the call and former administrator of the DEA during President Gerald Ford, Jimmy Carter and Ronald Reagan administrations, began the call. "Federal law, the U.S. Constitution and Supreme Court decisions say that this cannot be done because federal law preempts state law."

Bensinger added: "And there is a bigger danger that touches every one of us — legalizing marijuana threatens public health and safety. In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed. Drug treatment admissions are up and the number of teens using this gateway drug is up dramatically."

Bensinger was joined by a host of speakers including Bill Bennet and John Walters, former directors of the While House Office of National Drug Control Policy; Chief Richard Beary of the International Association of Chiefs of Police (IACP); Dr. Robert L. DuPont, founding director of the National Institute on Drug Abuse (NIDA) and who was also representing the American Society of Addiction Medicine (ASAM) and several others.

In response to the drug warriors calling out Holder again to take a strong public stance against these marijuana legalization measures, Mason Tvert, co-director of the Campaign to Regulate Marijuana Like Alcohol, the group behind Colorado’s Amendment 64 said to The Huffington Post:

We believe anything claimed by participants on the call today needs to be taken with many grains of salt. These people have made a living off marijuana prohibition and the laws that keep this relatively benign substance illegal. The nation wastes billions of taxpayer dollars annually on the failed policy of marijuana prohibition and people like Bill Bennett and John Walters are among the biggest cheerleaders for wasting billions more. The call today should be taken as seriously as an event by former coal industry CEOs opposing legislation curtailing greenhouse gas emissions. They are stuck in a certain mindset and no level of evidence demonstrating the weakness of their position will change their views.

This is an election about Colorado law and whether the people of Colorado believe that we should continue wasting law enforcement resources to maintain the failed policy of marijuana prohibition. Our nation was founded upon the idea that states would be free to determine their own policies on matters not delegated to the federal government. The Controlled Substance Act itself acknowledges that Congress never intended to have the federal government fully ‘occupy the field’ of marijuana policy. We hope the Obama administration respects these state-based policy debates. If Amendment 64 is adopted by the people of Colorado, there will be sufficient time before any new businesses are established for state and federal officials to discuss the implications.

Today’s call elaborated on a September letter that nine former DEA heads sent to Holder strongly urging him to oppose Amendment 64 in Colorado, Initiative 502 in Washington and Measure 80 in Oregon. "To continue to remain silent conveys to the American public and the global community a tacit acceptance of these dangerous initiatives," the nine said in the letter to holder obtained by Reuters.

A month before the 2010 election in California, Holder vowed to "vigorously enforce" federal marijuana laws and warned that the government would not look the other way and allow a state marijuana market to emerge. California’s Proposition 19 was narrowly defeated in 2010 and the pressure is on Holder again to voice opposition to these 2012 measures.

When pressed by a reporter during a Q & A following the call if the group was at all surprised that Holder had not yet made a statement about the measures, former drug czar John Walters replied, "I think it’s shocking. All you have to do is say things that this administration has already said. It would help enormously and I think it would defeat these measures."

Both Colorado and Washington’s pot ballot measures are quite popular with voters, according to recent polling and have been backed by an increasingly diverse group across a range of ideological perspectives.

In Colorado, if marijuana is legalized it would be taxed and regulated similar to alcohol and tobacco. It would give state and local governments the ability to control and tax the sale of small amounts of marijuana to adults age 21 and older. According to the Associated Press, analysts project that that tax revenue could generate somewhere between $5 million and $22 million a year in the state. An economist whose study was funded by a pro-pot group projects as much as a $60 million boost by 2017.


Richard Lee Endorses Ohio Medical Cannabis Amendment

By Steve Elliott ~alapoet~ in Legislation, News

Monday, April 16, 2012 at 8:04 am

Cannabis icon Richard Lee, in one of his first statements since the raid on Oaksterdam University, has endorsed the Ohio Medical Cannabis Amendment. 

"Can you imagine seeing your life’s work raided and seized?" Lee asked in a telephone interview. "Many patients like me can."

At age 27, while working as a lighting technician, Lee fell off a scaffold and broke his back. A paraplegic, he must now use a wheelchair. Standard prescription pills didn’t ease the pain, but medical cannabis did.

On April 2, the DEA, IRS, and U.S. Marshals raided Richard Lee’s famed cannabis trade school, Oaksterdam University, in Oakland, California. Since opening in 2007, Oaksterdam has provided cannabis industry training to about 15,000 experts and activists, and is fully compliant with state and local law.

Although Lee was detained during the raid, he was not arrested, but still fears prosecution.

Because of prohibition, a conviction involving cannabis can result not only in jail time, but also in the denial of federal benefits such as college loans, public housing and professional licenses.

"Medical cannabis prohibition is unjust and counterproductive," Lee said. "Because I believe what I have done is moral and ethical, I am standing up for my rights: My right to use medical cannabis to alleviate my suffering; my right to be free of discrimination and interference from the state with regard to my use; my right to access goods and services to enable my use.

"In short," Lee said, "I’m standing up for my rights by endorsing the Ohio Medical Cannabis Amendment."

Lee noted that the U.S. Justice Department may well have had a much more difficult time targeting him if he and his school had been protected by a similar amendment in California.

The Ohio Medical Cannabis Amendment is a proposed citizen-initiated amendment to the Ohio Constitution, slated for the ballot in the fall of 2012. It focuses on extending to patients eight rights based on the Bill of Rights within the Ohio Constitution.

The amendment also establishes an Ohio Commission of Cannabis Control to not only support, uphold and defend these rights, but also to regulate medical cannabis in Ohio.

Getting the OMCA on ballot will require the collection of 385,000-plus signatures by July 4, 2012. Thousands of people have contacted the campaign to help and securing funding for a complementary paid signature effort is the only obstacle left in getting on the ballot this year.

"Imagine election day 2012," Lee said. "All eyes are trained on Ohio – a perennial swing state during a high profile presidential race. Five million voters affirm the right to use cannabis as medicine. This may represent one of the strongest statements that cannabis reform has ever had the opportunity to make.

"I ask all Ohioans and reformers to stand with me, stand together and stand up for the right to use cannabis as medicine," Lee said. "Support the Ohio Medical Cannabis Amendment and help get it on the ballot in the fall." CONTINUE READING…