Pot, The Obama Administration And Supremacy

Late yesterday, Thomas Kaplan of The New York Times reported that New York City officials were getting behind Governor Andrew Cuomo’s plan to essentially decriminalize possession of 25 grams or less of marijuana in public view. Note that "it is already a violation to possess that amount without putting it into public view.” In other words, not a felony, misdemeanor, or crime.

“The New York Police Department, the mayor and the city’s top prosecutors on Monday endorsed a proposal to decriminalize the open possession of small amounts of marijuana, giving an unexpected lift to an effort by Gov. Andrew M. Cuomo to cut down on the number of people arrested as a result of police stops.”  (Thomas Kaplan, “Bloomberg Backs Plan To Limit Arrests For Marijuana,” The New York Times, 6/4/12)

“Under Mr. Cuomo’s proposal, the state would downgrade the possession of 25 grams or less of marijuana in public view from a misdemeanor to a violation, with a maximum fine of $100 for first-time drug offenders. It is already a violation to possess that amount without putting it into public view.”  (Thomas Kaplan, “Bloomberg Backs Plan To Limit Arrests For Marijuana,” The New York Times, 6/4/12)

“Mayor Michael R. Bloomberg . . . . said the governor’s proposal ‘strikes the right balance’ in part because it would still allow the police to arrest people who smoke marijuana in public.  (Thomas Kaplan, “Bloomberg Backs Plan To Limit Arrests For Marijuana,” The New York Times, 6/4/12)

We’re not going to get into a debate here about the merits of decriminalizing small amounts of pot. A majority of people think that sending someone to jail for smoking a joint or holding a 20 bag is ridiculous. What is worthy of debate here is a larger battle taking place right now over states rights and the Obama Administration's application of the Supremacy Clause. The Supremacy Clause is at the heart of the case in front of the U.S. Supreme Court right now over the illegal immigration law enacted by Arizona.

“In Their 25-Page Complaint, Justice Lawyers Cite The Legal Doctrine Of ‘Preemption,’ Which Is Based On The Constitution's Supremacy Clause And Says Federal Law Trumps State Statutes.” (Jerry Markon and Michael D. Shear, “Justice Department Sues Arizona Over Immigration Law,” The Washington Post, 7/7/10)

“Because The Federal Government Has ‘Preeminent Authority To Regulate Immigration Matters,’ The Lawsuit Argues, The Arizona Law Must Be Struck Down.” (Jerry Markon and Michael D. Shear, “Justice Department Sues Arizona Over Immigration Law,” The Washington Post, 7/7/10)

So what does this have to do with smoking a little grass or getting pulled over with “25 grams or less of” Mary Jane?

If the Obama Administration is fighting Arizona in court to prevent a “development of a patchwork of state and local immigration policies throughout the country” that undermines the Supremacy of the federal government’s ability to contend with illegal immigration (the province of the federal government according to the Obama Administration), why hasn’t Obama directed the Department of Justice to take action against efforts to decriminalize marijuana or make the drug available for “medicinal” purposes? Do city and state efforts to do just that create a similar “patchwork” of laws that undermine the federal government’s Supremacy?

Marijuana is a Schedule 1 narcotic under the Controlled Substances Act, a federal law. Under federal guidelines, marijuana is a drug with no “accepted medical value in treatment.” It is against federal law to cultivate, distribute or use marijuana, even for medicinal purposes. Yet, California openly allows “medical” marijuana to be sold, as does 16 other states and the District of Columbia.

According to the U.S. Drug Enforcement Agency’s (DEA) website, “the assertion that all medical marijuana is headed for seriously ill patients is misleading.” The DEA also states the “DEA and its local and state counterparts routinely report that large-scale drug traffickers hide behind and invoke” the ballot initiative that legalized medical marijuana in California.

Yet even though marijuana is against federal law, even for medicinal purposes, California (and other states) goes about its business of legitimizing marijuana cultivation, distribution and consumption, against federal law.

The Medical Board of California (MBC) goes out of its way to reassure “physicians who choose to recommend medical marijuana to their patients, as part of their regular practice of medicine, that they WILL NOT be subject to investigation or disciplinary action by the MBC.”

The California Department of Health’s Medical Marijuana Program (MMP) issues “voluntary medical marijuana identification” cards to “qualified patients and their caregivers.”

In 2008, the California Attorney General’s office issued “medical marijuana guidelines for law enforcement and patients.”

Of course we shouldn’t be surprised here that Obama’s DOJ has turned a blind eye to flouting federal marijuana laws. Obama campaigned on it and he appointed an Attorney General in Eric Holder that would carry out his decision to abdicate federal responsibility to uphold the Supremacy of federal law.

“Attorney General Eric Holder Said At A Press Conference Wednesday That The Justice Department Will No Longer Raid Medical Marijuana Clubs That Are Established Legally Under State Law.” (Ryan Grim, “Holder Vows To End Raids On Medical Marijuana Clubs,” The Huffington Post, 3/29/09)

“His Declaration Is A Fulfillment Of A Campaign Promise By President Barack Obama, And Marks A Major Shift From The Previous Administration.” (Ryan Grim, “Holder Vows To End Raids On Medical Marijuana Clubs,” The Huffington Post, 3/29/09)

So what’s the moral of the story here? Well, I don’t think there is one, except that in Obama’s America, the federal government is only Supreme when it sees fit, or politically advantageous… as one unnamed Democrat strategist noted (who of course spoke under the condition of anonymity to The Washington Post) there’s “a lot of upside” to fighting against Arizona in the name of federal supremacy for courting Latino voters in the future. Apparently there’s also a lot of upside politically to looking the other way as states decriminalize marijuana. A simple case of unequal application of the Supremacy clause. In other words, Obama wants to invoke the clause only when it is politically convenient. Then again, the President did partake in smoking some weed back in the day with his "Choom Gang," so maybe he just doesn't think drugs are a big enough deal to enforce the laws passed by Congress.

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