Has this happened so far? There is a ballot issue here in Maine to legalize marijuana, just like Colorado, Washington, Oregon, and Alaska. Some people are saying that it wouldn’t matter if it was legalized or not, because an FBI or DEA agent would still have the right to arrest you as long as it was illegal federally. Has it happened that someone in a state where it was legal was arrested by federal officers despite being in compliance with state law?
They would spend the next twenty years in Federal prison.
The Obama administration issued an Executive Order outlining a few ways that Federal LO would enforce Federal laws in States with whatever level of legalization of Marijuana, for example growing pot on Federal lands, selling pot to 8-year-olds, etc etc etc. Otherwise, the States are free to enact their own laws to legalize pot.
Come this January, the new president could well rescind this Executive order and all these State laws are down the sewer line … Marijuana is a category 1 controlled substance and a serious felony under Federal law, only Congress can change that.
United States v. Oakland Cannabis Buyers’ Cooperative - Wikipedia link
Various police agencies have a LONG history of arresting certain people for any charge they can if they really want to get someone. So to my knowledge they are not going around arresting people for this, but there might be some cases where someone is wanted for something else, so they use this as a way to arrest them.
A handful of arrested people here in Colorado CLAIMED to be following state law. I’m not sure how those cases turned out.
I do know that there seemed to be an issue for a while of the feds not really being familiar with the state law. Mind you, a lot of the public weren’t knowledgeable either. It’s quite possible that some of those arrested people honestly thought they were following the law when they weren’t.
The main issue lately is people knowingly growing far more than state law allows, but hoping to sneak under the radar. Utility companies and fire departments are starting to partner with law enforcement on the issue, because of illegal utility use and fire danger.
ISTM I read somewhere just recently that the DEA or FDA or Congress or someone is looking at a proposal to re-classify pot to be a Schedule II drug sometime in the fairly near future. I’ll see if I can find a cite for that . . .
ETA: Okay, here’s one example of an article I found:
Federal Reclassification of Marijuana Could Have Major Impact on Medical Uses, ABC News, April 11, 2016.
Okay, here’s another article that more directly addresses this topic:
U.S. Gov’t Will Legalize Marijuana on August 1, Santa Monica Observer, June 22, 2016.
TL;DR: (1) DEA will re-classify to Sched II on August 1.
(2) This means pot will be legal with a medical prescription.
(3) This will pre-empt any state or local laws to the contrary.
TBH, I’ll believe it when I see it. Maybe.
Even more recent item I just noticed about it:
Arguably the Most Important Marijuana Decision Ever Is Just Weeks Away, June 25, 2016.
This article, being from The Motley Fool, focuses mainly on the impact of the decision on investment opportunities in the burgeoning pot industry. The article discusses a variety of options that might be under consideration:
If it’s re-scheduled (as opposed to de-scheduled), it becomes a Rx-only drug, which pre-empts any state or local laws to the contrary. Thus, for example, it could no longer be used without a medical Rx in Colorado. That’s how I’m reading this, anyway.
I have seen other claims to this effect. But, right now, Colorado and other similar states are basically flouting federal law. Rx or no Rx, under federal law marijuana is completely illegal in every state and the feds could, if they wanted, bust every pot dispensary and pot user in the country.
So if the feds loosened the marijuana regulations, why would the states suddenly start strictly enforcing federal law?
The states never enforce federal law. If the feds want people arrested for possession/drug dealing in states where it’s legal, they’ll have to arrest everyone themselves. They don’t really have the manpower to get everyone.
Is it certain that federal law requires Schedule II drugs to have a prescription and be dispensed by a pharmacist? Or is it a state thing? I thought most medical rules like that were state laws, not federal.
That’s the magical Commerce Clause for you. You might reasonably ask: where in the Constitution does Congress acquire the power to make some drugs legal and some not? A pure originalist, or some textualists, would say nowhere. Regulation of drugs is pretty clearly a general police power, the kind that a government uses to prohibit selling faulty merchandise or unsafe buildings, practicing medicine without knowing what you’re doing, driving recklessly, or any other individual activity deemed, without causing direct harm to another individual, to be a general danger to society. General police powers are reserved to the states, or at least, that’s the principle of “enumerated powers.” (Meaning, Congress has only the specific powers granted to it by the Constitution, and the states have all other general powers of government, whatever is not specifically mentioned in the Constitution – this is written into the Constitution itself.)
However, during the Depression the Supreme Court decided the famous Wickard case, that the Commerce Clause of the Constitution, which gives Congress the power to regulate commerce between states – basically in order to prevent states from erecting tariffs or in any other way obstructing interstate trade, a real issue in the Founders’ day – also gives Congress the power to regulate activities that never actually cross state boundaries if they are “economic” in nature and could influence, while not actually be part of, interstate commerce in that commodity. (The case in question was whether the Feds could regulate crops grown on a farm and consumed locally, not sold across state lines – the Supreme Court said yes it can, because the existence of those crops may affect the demand for crops from out of state, hence influence interstate commerce without actually being part of it.
The issue of whether the Feds could regulate drugs came up most recently in Gonzales, in which a California medical marijuana user argued the Commerce Clause did not give Congress the right to prohibit her purely personal cultivation and use of marijuana which was then legal under California law. Somewhat surprising, the Ninth Circuit took the argument seriously, but the Supreme Court did not. By a 6-3 majority, it decided that Wickard was correct, and the Commerce Clause gives Congress the power to regulate (or as it has actually done prohibit entirely) the interstate trade of marijuana, and since growing marijuana for personal use could influence interstate trade, inasmuch as if you can grow it legally for your own use you will not want to attempt to buy it across state lines, then Congress has the power to regulate personal growth of marijuana, even if it’s legal under state law.
Presumably Gonzales gives Congress the power to prohibit the mere purchase of marijuana, too, since that, too, is an economic activity that affects interstate commerce in marijuana. But what about if someone just gives you the stuff? Can Congress regulate that? Some of the outer limits of the Commerce Clause’s powers have yet to be fully explored. It seems likely that the Supreme Court – at least, the current one – would agree if asked that Congress has the power to regulate the sharing of tokes because even though no money changes hands, something of value does, and therefore – it’s an “economic activity” and can affect interstate commerce.
Indeed, it was almost decided in NFIB v Sebelius (the lawsuit challenging the constitutionality of the PPACA) that the Commerce Clause allowed Congress to regulate not doing anything at all if that could affect interstate commerce – in this case, government argued that Congress could prohibit you from not buying health insurance because not buying something could be considered a form of “economic activity” and would certainly affect interstate commerce (in this case, in health insurance, or cross-state health spending). However, the argument that not buying things was economic activity proved to be a bridge too far for Chief Justice Roberts, who only voted to uphold the PPACA on the basis of Congress’ taxing authority. That is, since Congress did not criminalize a failure to buy health insurance, but merely imposed a tax penalty for not doing so, the PPACA was constitutional under Congress’s enumerated power to tax your income for any reason or in any manner it pleases, with tax breaks and tax penalties for activities it wants to encourage or discourage, respectively.
Fantastic post.
Yes indeed. That’s some catch that catch 22, sorry, Commerce Clause.
In practice, doesn’t the FBI and DEA concentrate on trafficking, leaving it up to the states to prosecute simple possession? The federral government just doesn’t have the manpower or funding to police at the street level; as posted upthread, I see federal prosecution of possession merely as a “gotcha” charge to lever cooperation on more serious matters.
I haven’t heard of any federal arrests in Oregon, as yet. Oregon is still in the throes of creating barn doors now that the horses are in the marijuana fields. The original legislation was written by a couple of lawyers who were partners with a local scumbag* who wanted to sell pot. The legislature passed it pretty much as written, and it has huge regulatory holes in it.
*He’s not a scumbag because he sells pot, he’s just a general, garden-variety scumbag, well-known to the community.
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We were an alcohol drinking public when the car came along … and it took us toooooo long to get a handle on drunk driving.
HEY …
Don’t toke and drive … just don’t do it, ever … we know better now.
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Yes, and afaik, most of those busted by the Feds for pot are connected to the cartels.