Thursday, November 08, 2012

Tenth Amendment Freeze-Out?

We'll get back to the recriminations in the next day or two. I do want to address a different issue, however, that I think will be especially interesting to consider in the coming months -- will the Obama administration try to overrun popular state level initiatives, especially in the West? And is the 10th Amendment a dead letter?

As a reminder, here is the text of the 10th Amendment to the Constitution:
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.
We're likely to see this challenged, sooner than later. First, let's look at state moves in re Obamacare:
Alabama, Montana, and Wyoming voted to reject Obamacare's insurance mandate, following the lead of what voters in Arizona, Missouri, and Oklahoma did in 2010. A similar measure this year in Florida failed. Missouri voters took their Obamacare protest one step further this year, approving a measure to prohibit the governor from setting up insurance exchanges unless voters or the state legislature approves. But none of the measures are anything but symbolic; states can't override the insurance mandate, and if Missouri fails to set up the exchanges the federal government will just do it instead.
Emphasis mine. I pulled this from Mother Jones, so you can take the emphasized portion as opinion. How specifically will the federal government enforce the individual mandate if states refuse to set up the health care exchanges that are part of the law? It will be interesting to see if (a) the Obama administration tries to roll over the states and (b) whether the Supreme Court will let it do so.

An equally interesting question comes from what happened in Colorado and Washington state on Tuesday:
Colorado became the first state to legalize marijuana outright last night, followed an hour later by Washington. The question now is how far the federal government will go to crack down on the historic new laws. Another legalization measure in Oregon failed, in large part due to concerns that the law would have been overly broad. Meanwhile, voters legalized medical marijuana in Massachusetts but rejected it in Arkansas, and in Montana approved a measure that tightens restrictions on the state's existing medical marijuana laws.
There are a lot of people who are social libertarians and liberalish on other issues who really, really want marijuana to be legalized, and many of them (a) have expended considerable effort to pass these ballot initiatives and (b) have been dutiful supporters of the president. In his youth, Barack Obama was a prodigious pot smoker, but he's been just like all his predecessors when it comes to using the power of the federal government against people who use marijuana. In some respects, he's been worse than his predecessors, as Rolling Stone reported earlier this year:

Back when he was running for president in 2008, Barack Obama insisted that medical marijuana was an issue best left to state and local governments. "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," he vowed, promising an end to the Bush administration's high-profile raids on providers of medical pot, which is legal in 16 states and the District of Columbia.

But over the past year, the Obama administration has quietly unleashed a multi­agency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush. The feds are busting growers who operate in full compliance with state laws, vowing to seize the property of anyone who dares to even rent to legal pot dispensaries, and threatening to imprison state employees responsible for regulating medical marijuana. With more than 100 raids on pot dispensaries during his first three years, Obama is now on pace to exceed Bush's record for medical-marijuana busts. "There's no question that Obama's the worst president on medical marijuana," says Rob Kampia, executive director of the Marijuana Policy Project. "He's gone from first to worst."
Medical marijuana is one thing, but what Colorado and Washington have chosen goes well beyond that. They have essentially legalized marijuana, in clear contravention of federal law. It's worth remembering that both Colorado and Washington are states that have gone for Obama twice. Will Obama tread lightly now that these friendly states have taken this action? Or will his administration continue to crack down?


Gino said...

california is as much in obama's column as anything, and he spent the past year going all blitzkrieg at our dispensaries.
he's shut down everthing in at least three of the most populous counties, if not the whole state.

seems, he only wants cartels (who buy his rifles) to sell pot.

Anonymous said...

Gino, when you say "our dispensaries" do you mean the one down the block that you frequent more than Ralphs? Or are you using the collective third person "our" as an angry pot-smoker railing against the Federal government's continued "War on Drugs"? Because if you are playing the role of the latter I've got your back. Although I'm not too sure that Obama has a secret stash of AK 47s he's selling to the Mexican Mafia to keep the flow of black tar Mexican herion flowing to the Rollin' 130s on the South Side of Chi-town either. But if you have the 411 drop me a dime.

So, Mr. D., you posit the question every user of health care and every user of weed should contemplate: But what about the 10th Amendment? I suspect this double-bind you're trying to construct feels to you like a worthy legal conundrum. Yet my brain tells me it's whistling in the canyon. I agree with you if you're saying the current administration is hypocritical with it's prosecutorial pursuit of pot smokers and undocumented workers, but I disagree with you if you think the people who live in the states you mention suffer from some sort of 10th Amendent schizophrenia. If you think you're lobbing questions into the rhetorical air and simply seeing where they might land, I applaud you, but I suspect you think your query makes thoughtful people think like you. Well, I've thought about it, and I don't.

Mr. D said...

I disagree with you if you think the people who live in the states you mention suffer from some sort of 10th Amendent schizophrenia.

I don't think anything of the sort. I'm just pointing out a potential fault line in our polity that bears watching.

If you think you're lobbing questions into the rhetorical air and simply seeing where they might land, I applaud you, but I suspect you think your query makes thoughtful people think like you. Well, I've thought about it, and I don't.

Two things:

1) Does that mean you're not thoughtful? ;)
2) Think whatever you want.

Gino said...

anon: find the stones to ID yerself, and will offer a full response on my own page.

stones are not hard to find. i think you can, if you want to...

Brian said...

Here in WA, it will be legal to possess an ounce or less of MJ if you are 21 or older as of December 6. In King County, the DA has already dropped all pending misdemeanor possession cases (a couple of hundred.) In Seattle, the City Attorney (who was one of the sponsors of I-502) has never prosecuted a single simple possession case since he took office in '09.

Basically, no one is going to arrest you for simple possession if you are an adult. You can't smoke it public (just like you can't drink in public). This has been the de facto situation in the City of Seattle for a couple of years already, now it will be statewide.

The Feds lack the personnel, resources, and inclination to go after simple possession (they don't even bother with street-level dealers.) So I'd say that's more or less safe. Moreover, there is no legal mechanism for the Justice Department to sue to stop this change (issue an injunction, or whatever) to state law.

However, there remains no way to legally purchase MJ (without a medical card). The law provides for the state liquor board to set up the regime to license stores, collect taxes, etc. They have until Dec 2013 to do so (and in all likelihood will take that long.) Here, the DoJ could sue to stop the implementation of that (I'm not sure the exact legal distinction here, but I'm guessing it has to do with revenue and/or interstate commerce.) And I imagine that they will.

If state licensed stores go forward, it isn't hard to imagine that they could be big targets for federal distribution charges. So it will be interesting to see who is willing to take that risk.

Another possibility is that the Feds decide to leave WA and CO alone, but focus on trafficking across state lines.

My gut is that while there is likely to be some action in court, we aren't going to see any substantial federal enforcement efforts here unless and until stores start operating in the open. In the meantime, we will have at least a year of legal (to possess) MJ in the state. And when the sky fails to fall, this could go a long way towards convincing fence-sitters elsewhere that maybe legalization isn't such a terrible idea.

And with public sentiment moving in favor of legalization, heavy-handed federal interference may (one hopes) become a lot less politically appealing.

It's a dream; but it seems a hell of a lot more plausible now than it did a week ago.