# Pot now illegal? **URL:** \ **Category:** Factual Questions\ **Created:** [January 6, 2018, 6:05am UTC](https://boards.straightdope.com/t/pot-now-illegal/805971 "2018-01-06T06:05:23Z")\ **Posts on this page:** 19\ **Page:** 3
**Author:** ![HMS\_Irruncible](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hms_irruncible/32/7394_2.png) [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)\ **Post date:** [January 7, 2018, 12:37am UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/41 "2018-01-07T00:37:39Z")
> [@watchwolf49](#): > > 'Tis said that once California legalizes recreational marijuana, we’ll have the critical mass that will prevent the DEA from moving on these businesses that are in compliance with State Laws … that started first of this week … so this is just chest-thumping by Jeff Sessions, he doesn’t have the manpower to enforce the Law over the strident objections of local law enforcement, the first fire-fight between the sheriff’s department and the DEA will end any further interference … You think local law enforcement would intervene with deadly force to prevent the DEA from enforcing federal law? I didn’t read the quote exactly that way. I have a hard time imagining any local or state officials would shoot it out with the DEA over conflicting laws. Maybe my imagination is too small? I just don’t see it. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [January 7, 2018, 12:49am UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/42 "2018-01-07T00:49:15Z")
> [@Chimera](#): > > Oh, and since the majority of Americans now support legalization, how do you think jury selection is going to go … [snip] If I’m selected … I’m walking in reeking of the stuff … ---
**Author:** ![Pantastic](https://avatars.discourse-cdn.com/v4/letter/p/3bc359/32.png) [@Pantastic](https://boards.straightdope.com/u/Pantastic)\ **Post date:** [January 7, 2018, 12:59am UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/43 "2018-01-07T00:59:12Z")
> [@aldiboronti](#): > > Could someone explain to a non-American what’s going on here? I thought that states were sovereign when it came to their own internal laws. How can the federal government overrule a state law which does not concern other states and, presumably, is not unconstitutional? What is the federal justification for interfering in state business and arresting citizens who are abiding by the laws of that state? The Federal justification is that the Feds certainly have the authority to regulate interstate commerce in marijuana (and other drugs) as laid out in the constitution, and that part is not controversial at all. The justification for being able to regulate it within a state is that controlling illegal drugs is a majorly important policy as they do a lot of damage, that it’s essentially impossible to distinguish interstate and non-interstate drugs in practice, and that commerce within a state affects the interstate market even if it doesn’t actually cross state lines. This was upheld in a 2005 court case: > [@https://en.wikipedia.org/wiki/Gonzales\_v.\_Raich](#): > > Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. > [@Spectre\_of\_Pithecanthropus](#): > > You’re splitting hairs. The law was a bad law that was completely overturned once it got a serious court challenge. It’s not splitting hairs to consider something ‘illegal’ only if a legal law makes it so, and the 1934 law failed to pass that bar. The 1970 law has stood up to constitutional challenge and is vanishingly unlikely to fall to any broad challenge. I’m not arguing that it wasn’t an attempt to make individual possession illegal, I’m arguing that it failed to do so as it didn’t pass constitutional scrutiny once someone actually mounted a legal challenge to it. ---
**Author:** ![Jeff\_Lichtman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jeff_lichtman/32/1531_2.png) [@Jeff\_Lichtman](https://boards.straightdope.com/u/Jeff_Lichtman)\ **Post date:** [January 7, 2018, 1:04am UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/44 "2018-01-07T01:04:51Z")
> [@Derleth](#): > > Pot has always been illegal at the Federal level. . . > > That means pot has always been illegal at the state level. > > We had a Civil War to this effect. The driving force there was slavery, but the end result is the same: Federal law supersedes state law. This is a gross oversimplification of how state and federal law work. There is a system of dual sovereignty in the U.S. The states have to obey the Constitution, and there are certain areas where federal law supersedes state law. However, it is not true that pot being against federal law means it is also against state law, nor does it mean that state authorities are under any obligation to enforce federal law. A state cannot prevent federal law enforcement from, say, arresting a pot vendor, but the federal government cannot force a state’s law enforcement agencies to arrest same vendor. What the Civil War settled is that a state doesn’t have the right to secede. While slavery was the driving force behind the war, it required a Constitutional amendment to outlaw it. ---
**Author:** ![BeenJammin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/beenjammin/32/448_2.png) [@BeenJammin](https://boards.straightdope.com/u/BeenJammin)\ **Post date:** [January 7, 2018, 2:13am UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/45 "2018-01-07T02:13:36Z")
> [@aldiboronti](#): > > What is the federal justification for interfering in state business and arresting citizens who are abiding by the laws of that state? Cannabis is a schedule-1 controlled substance, by Federal law - illegal for ordinary citizens to possess for any purpose. > [@John\_Mace](#): > > I just gave the link in the post prior. It’s the commerce clause, that has been used for decades to let the feds do almost anything they want. The commerce clause is not applicable for simple possession or possession with intent to distribute. That just gets piled on for traffickers caught with big loads going across state lines. The real justification in the minds of the industrial-government consortium responsible for the ongoing weed ban is purely economic - nothing to do with dangerous drugs. Cannabis poses a real monetary threat to large corporations in the pharmaceutical, alcohol, textile and other industries. That is the reason the good 'ol boys club started the process in 1937 and remains the reason it is still being suppressed to this day. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 7, 2018, 12:21pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/46 "2018-01-07T12:21:35Z")
> [@BeenJammin](#): > > The commerce clause is not applicable for simple possession or possession with intent to distribute. That just gets piled on for traffickers caught with big loads going across state lines. > > The real justification in the minds of the industrial-government consortium responsible for the ongoing weed ban is purely economic - nothing to do with dangerous drugs. Cannabis poses a real monetary threat to large corporations in the pharmaceutical, alcohol, textile and other industries. That is the reason the good 'ol boys club started the process in 1937 and remains the reason it is still being suppressed to this day. The commerce clause is not a law that “gets piled on”. It’s used to justify that the law, itself, is constitutional. Keep in mind that this practice of using the commerce clause goes back to someone growing wheat for his own consumption. See [Wickard v. Filburn](https://en.wikipedia.org/wiki/Wickard_v._Filburn). You are wrong, and since this is GQ, you’ll need to give a cite if you think you aren’t. Getting back to the OP, I just read that Monterey County, in preparation for the new law, is hiring a “Cannabis Program Manager” to weed through the new regulations (that was the newspaper’s pun, not mine). It pays $81K - $110k/yr, depending on experience. I’d love to see some of the resumes. 🙂 ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [January 7, 2018, 1:00pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/47 "2018-01-07T13:00:38Z")
> [@BeenJammin](#): > > The commerce clause is not applicable for simple possession or possession with intent to distribute. Really? I thought _Gonzales v. Raich_ affirmed that the commerce clause gives the federal government the right to criminalize marijuana even when grown and consumed for strictly personal use. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [January 7, 2018, 2:01pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/48 "2018-01-07T14:01:37Z")
> [@k9bfriender](#): > > Would federal court still pull a jury from among locals? If so, seems jury nullification may become a thing. I’ve been discussing jury nullification with my friends, most of whom have never heard of the concept. I share [this with them](http://fija.org/). I ask them if they would have nullified a slavery case. I hope that they continue the discussion with _their_ friends, coworkers, etc. All it takes is one out of twelve. How many Federal cannabis prosecutions being nullified would it take to make a difference? ---
**Author:** ![BeenJammin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/beenjammin/32/448_2.png) [@BeenJammin](https://boards.straightdope.com/u/BeenJammin)\ **Post date:** [January 7, 2018, 3:41pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/49 "2018-01-07T15:41:06Z")
> [@John\_Mace](#): > > You are wrong, and since this is GQ, you’ll need to give a cite if you think you aren’t. Check your definitions of right and wrong. Better yet - stop providing misinformation on a topic with which you are not familiar. Court records for decades are replete with this issue in drug prosecutions. [Here’s some higher-level examples.](http://www.scotusblog.com/2016/06/opinion-analysis-proof-of-interstate-effects-is-unnecessary-for-federal-prosecution-when-illegal-drugs-are-involved/) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 7, 2018, 4:37pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/50 "2018-01-07T16:37:20Z")
> [@BeenJammin](#): > > Check your definitions of right and wrong. Better yet - stop providing misinformation on a topic with which you are not familiar. Court records for decades are replete with this issue in drug prosecutions. [Here’s some higher-level examples.](http://www.scotusblog.com/2016/06/opinion-analysis-proof-of-interstate-effects-is-unnecessary-for-federal-prosecution-when-illegal-drugs-are-involved/) First of all, _Raich_ was decided surrounding a case where the person was using home-grown pot: > [@](#): > > Defendant Angel Raich used homegrown medical marijuana, which was legal under California law but illegal under federal law. On August 15, 2002, Butte County Sheriff’s Department officers and agents from the federal Drug Enforcement Administration destroyed all six of California resident Diane Monson’s marijuana plants, facing light resistance. Secondly, if you read your own cite, you’d see that it also proves you are wrong. Emphasis added from your cite: > [@](#): > > In determining “how far this [Hobbs Act] commerce element extends,” the Court’s opinion today affirmed the Fourth Circuit’s basically syllogistic reading of Raich and prior Commerce Clause decisions. Under the familiar twentieth-century precedents of Wickard v. Filburn, Lopez, and United States v. Morrison, Congress has the constitutional authority (“thus far”) to regulate economic activities that “substantially affect” interstate commerce. Then in Raich, the Court ruled that in order to avoid “a gaping enforcement hole in Congress’s regulatory scheme” for illegal narcotics, the federal Controlled Substances Act can constitutionally reach even those marijuana “activities” that “occur entirely within the boundaries of a single State.” This is because an “economic class of activities” can “in the aggregate substantially affect interstate commerce,” so that even small intrastate activities that make up the “aggregate” can be reached federally. > > As the Justices saw it today, “the case before us requires no more than that we graft our holding in Raich onto the commerce element of the Hobbs Act.” Because Raich held that “the market for marijuana, including its intrastate aspects, is ‘commerce over which the United States has jurisdiction,’” it follows “as a simple matter of logic” that individualized proof of interstate marijuana or effect is not required in an individual Hobbs Act marijuana dealer robbery case. Taylor’s conviction is therefore affirmed because the “absence of interstate effect” evidence he wished to offer was, apparently, irrelevant as a matter of law. ---
**Author:** ![BeenJammin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/beenjammin/32/448_2.png) [@BeenJammin](https://boards.straightdope.com/u/BeenJammin)\ **Post date:** [January 7, 2018, 4:55pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/51 "2018-01-07T16:55:00Z")
So the commerce clause keeps coming up in drug prosecutions for the wrong reason - is that the point behind your “emphasis?” Hmmmm. Wonder if the law ever gets interpreted in different ways for various partisan reasons. Whodathunkit?! :rolleyes: ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 7, 2018, 5:23pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/52 "2018-01-07T17:23:57Z")
> [@Derleth](#): > > I know how these things usually go. No-that is how it very rarely goes. More often one side starts labeling the other side’s arguments as “screaming” as an excuse to not listen any more. ---
**Author:** ![Pantastic](https://avatars.discourse-cdn.com/v4/letter/p/3bc359/32.png) [@Pantastic](https://boards.straightdope.com/u/Pantastic)\ **Post date:** [January 7, 2018, 9:43pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/53 "2018-01-07T21:43:00Z")
> [@BeenJammin](#): > > The commerce clause is not applicable for simple possession or possession with intent to distribute. That just gets piled on for traffickers caught with big loads going across state lines. The Supreme Court said differently in the case that I cited and linked to the Wikipedia article about. When the legislative, executive, and judicial branches all believe that a law is a valid law, it’s valid by any measure that’s reasonable to bring up in GQ. You might think that it’s unjust or inappropriate (I personally think that the gross expansion of the commerce clause is wrong), but it’s not factually correct to say that it’s ‘not applicable’ when the people with the force to apply it all agree that it is. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 7, 2018, 10:10pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/54 "2018-01-07T22:10:46Z")
> [@BeenJammin](#): > > So the commerce clause keeps coming up in drug prosecutions for the wrong reason - is that the point behind your “emphasis?” > > Hmmmm. Wonder if the law ever gets interpreted in different ways for various partisan reasons. Whodathunkit?! :rolleyes: The case you linked to was one where the Hobbes Act was invoked, and the court agreed that _Raich_ applies. End of story. There was nothing “added on”, and there were no state lines crossed, as you originally claimed. You were wrong and it’s been shown that you were wrong. End of story. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 8, 2018, 3:48am UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/55 "2018-01-08T03:48:50Z")
IIRC, the commerce clause was used to justify a myriad of federal intrusions into state jurisdiction. The logic was that to control the interstate commerce in illegal substances, the feds also needed to limit the ability of these substances to get into the hands of the public. Anything sold locally in a state would obviously end up being trafficked interstate. The Supremes were happy to back this up. However, I do note that not long ago, Roberts wrote the opinion for the Obamacare decision that said the individual mandate was legal. But… they said it was legal because it was a tax (legal) and trashed the interstate commerce argument for justifying mandatory health care. (Basically, saying to congress “if you want it gone, you do it instead of relying on us to do your job…”) This seemed to put an upper limit on how far the court is willing to continue accepting the interstate commerce clause as a voodoo spell to justify any federal intrusion in state law. But then, will Roberts and the conservatives support a restriction on the interstate commerce argument to support the rights of states to sell the devil weed? The other problem is that it is not a matter of raiding pot fields. In Oregon, where I understand it has been legal for a while, I have seen news stories that the businesses deal solely in cash - because banks are reluctant to do business with them, and any bank accounts are more easily subject to seizure a the proceeds of crime. All sales are cash, all payrolls are cash, rent, profits, etc. - all done with cash. ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [January 8, 2018, 5:19am UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/56 "2018-01-08T05:19:33Z")
> [@md2000](#): > > The other problem is that it is not a matter of raiding pot fields. In Oregon, where I understand it has been legal for a while, I have seen news stories that the businesses deal solely in cash - because banks are reluctant to do business with them, and any bank accounts are more easily subject to seizure a the proceeds of crime. All sales are cash, all payrolls are cash, rent, profits, etc. - all done with cash. That’s true in all the states that have legal marijuana, including medical mj, not just Oregon. The main reason is the laws on money laundering, which the banks are subject to. A few banks do serve the marijuana industry, but most are too leery. [This article here](http://www.latimes.com/business/la-fi-cannabis-banking-20170707-story.html) covers it better than I can. ---
**Author:** ![Ornery\_Bob](https://avatars.discourse-cdn.com/v4/letter/o/da6949/32.png) [@Ornery\_Bob](https://boards.straightdope.com/u/Ornery_Bob)\ **Post date:** [January 8, 2018, 9:25pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/57 "2018-01-08T21:25:58Z")
> [@Mortimus](#): > > For those of you living in “pot friendly” states, what’s going on? Are dispensaries closing their doors? Is it a wait & see thing? Seems to me that if the Feds want to make a point it would be easy for them to make a few high-profile busts. Dispensaries wouldn’t want to take the risk and therefore shut down. > > But I’m also guessing that local federal judges would have to hear these cases. If said local judge is sympathetic to the cause the case would likely be thrown out. Here in SoCal, at the user level, it’s business as usual. I also think your take on dispensaries is wrong. They’re all very local and highly individual and there are thousands of them. It’s not like you can bust Macy’s and scare off Saks. Raid one big dispensary in Los Angeles and the only result will be that business gets a little better for all those that are left. And business is booming. These places are practically minting money and believe me, they aren’t going to scare easy. Sessions can huff and puff all he wants. He doesn’t have the budget or the will of the people to do anything more. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 8, 2018, 11:12pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/58 "2018-01-08T23:12:08Z")
> [@](#): > > Originally Posted by [Gonzales v. Raich - Wikipedia](https://en.wikipedia.org/wiki/Gonzales_v._Raich) > Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. I have three problems with this holding that I don’t believe have been adequately discussed with regard to this case: 1. Forget about the commodity involved whether wheat, marijuana, or tomatoes. By the Court’s rationale, no intrastate regulation or indeed any interstate activity with a commercial product could be shielded from Congress as it would “affect” interstate commerce by definition. If Congress passed a law against juggling oranges in the backyard under the theory that juggling oranges can cause them to be dropped, causing fewer oranges in commerce, etc., then the law would be constitutional. It would be as if Congress had the authority to regulate all activities related to articles of commerce instead of just articles of commerce or commerce instead of interstate commerce. The majority did not appreciate how its holding goes beyond marijuana or even the growing of marijuana. 1. The holding did not comport with Congress’ purported interest. It wanted to eliminate the interstate marijuana market, right? So, it has to ban homegrown weed in case it filters into that market. Without all of this homegrown weed, there is less marijuana in the interstate market, so Congress surely wanted high-scale marijuana traffickers to make an even larger profit on their trade? No? Indeed, why not look at the opposite view. By growing her own marijuana, Raich was not participating in the interstate market: a result Congress would encourage. Should we keep up the fiction about how Congress wanted or did not want the interstate marijuana market to work or should we just admit that this was regular police power activity? 1. Unlike wheat, where Congress was genuinely concerned about a thriving market, Congress cares not about how the “marijuana market” does. That’s a post hoc justification. In the future should Congress simply delineate its police powers as commercial markets? Suppose Congress states a desire to get rid of interstate murder for hire. Could it then pass a law against all murders on the grounds that do-it-yourself murder harms the interstate market? ---
**Author:** ![purplehorseshoe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/purplehorseshoe/32/2996_2.png) [@purplehorseshoe](https://boards.straightdope.com/u/purplehorseshoe)\ **Post date:** [January 8, 2018, 11:14pm UTC](https://boards.straightdope.com/t/pot-now-illegal/805971/59 "2018-01-08T23:14:58Z")
> [@Ornery\_Bob](#): > > … > > Sessions can huff and puff all he wants… Heh. I see what you did there. [Previous page](https://boards.straightdope.com/t/pot-now-illegal/805971.md?page=2)