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Monday, January 1, 2018


My son, Tobias [who does not smoke weed or anything else], posted this warning on his FaceBook page.  Weed lovers, take note:

To all my friends in California who are looking forward to buying marijuana after the new law takes effect on January 2, and to all my friends in Colorado and elsewhere who have been doing the same: You need to understand that buying marijuana is still a crime under federal law. Nothing that California, Colorado, or any other state does can change that fact. The media has been catastrophically inept in its reporting on this subject. If you are buying or using "legal" recreational weed in Colorado, you are committing a federal crime. If you buy or use "legal" recreational weed in California next week, you are committing a federal crime.
Even your ability to buy medical marijuana in the dozens of states that have "legalized" that practice is precarious. Medical marijuana is still a crime under federal law. Since December 2014, there has been a federal statute that prohibits the Department of Justice from spending funds to interfere with the implementation of state medical marijuana laws. That law was set to expire a few months ago, got a pair of short-term extensions, and will now expire on January 19 unless it is made a part of the spending bill (if we get a spending bill). And even under this legislation, the purchase of medical marijuana is still a federal crime, there is just a de facto prohibition on prosecution. The statute of limitations on the federal offense is five years.
Until and unless Congress changes the classification of marijuana as a Schedule One controlled substance under federal law, buying recreational marijuana means that you are putting yourself at the mercy of federal enforcement authorities. At the present moment, that means Jefferson Beauregard Sessions III -- who has made demonizing marijuana a career-long commitment -- and the unstable madman in the Oval Office who just proclaimed that he can unilaterally order the Department of Justice to do whatever he wants.
Perhaps it is unlikely that the federal government would shut down the cannabis industry altogether -- it is worth billions of dollars. But that is not the point. Authoritarian regimes wield criminal law to control political dissent, using charges (real or spurious) to imprison their opponents and extort compliance. We have not gotten to that point yet, but it is not difficult to imagine.
If your immigration status depends on not committing crimes, then for Heaven's sake stay away from "legal" marijuana, because it is not legal under federal law. If you are engaged in political protest or other forms of opposition to the current administration, then be aware that buying or possessing "legal" marijuana puts a tool in the hands of federal authorities to go after you. Simple possession of recreational marijuana carries a penalty of up to one year in jail under federal law and could mobilize federal forfeiture penalties that could take your car or even your home.
Sorry to be a buzz kill. But you need to understand, if you buy or possess "legal" marijuana in California, Colorado, or anywhere else, you are putting your safety and possibly the future course of your life in the hands of Attorney General Jeff Sessions and the unstable madman in the Oval Office. That is a decision that requires very careful thought.


Anonymous said...

Talk about a buzz kill, yes. Can't lawyers just shut up and let us have fun for a couple days?

I've been wondering when Trump/Sessions would use the pot laws to go after their enemies in Western blue states. It's an obvious move for these guys.

s. wallerstein said...

I don't live in California of course and I'm not a lawyer, but what would happen if someone were to flagrantly smoke legal marijuana in California, say, in front of the local DEA office (I assume that the DEA has an office in California)? I assume that the DEA would arrest him or her and there would be a complicated legal case which would, I suppose, first, end up in the Supreme Court and second, provide abundant free publicity over how stupid the laws prohibiting adults from smoking a joint are. Under federal law it would be civil disobedience and under California it would be not be civil disobedience. Whoever dared to do that would be a hero for many people, and of course if the DEA doesn't arrest him or her, they would not be doing their duty.

Maybe your son, Tobias, could defend this person, since he or she would need a good lawyer.

Jerry Fresia said...

s. wallerstein,

Unfortunately, I don't think the legal case would be complicated.

In any case, thank you Tobias for the heads up; this is important


s. wallerstein said...

Jerry Fresia,

Does Federal Law necessarily trump state law?

That's a genuine, not a rhetorical, question.

David Palmeter said...

S. Wallerstein,

Yes, Federal law trumps (no pun intended)State law.

Jerry Fresia said...

S. Wallerstein,

I don't know for sure, but I think so. Supremacy clause. But there are probably situations when the federal law isn't valid in some way.
Tobias, if you're listening????

s. wallerstein said...

And might there not be a constitutional argument that the states have the right to decide whether they can declare marijuana legal or not?

It's weird that the left would use a states rights argument, but why not?

Anonymous said...

It's weird that the left would think smoking anything was a good idea, but why not?

David Palmeter said...

The Constitution prevails over both Federal and State legislation that is inconsistent with it. Assuming constitutionality of both, Federal prevails. Thus, the Civil Rights Act and the Voting Rights Act prevailed over inconsistent State laws even if they were constitutional. The general rule is that, when both the States and Congress can legislate in an area, a law enacted by Congress prevails over inconsistent State law.'

Of course, it might be argued that Federal law concerning marijuana is unconstitutional. I haven't heard what such argument would be, and can't think of one of the top of my head.

s. wallerstein said...

David Palmeter,

Thank you for the legal expertise.

Anonymous said...

If I might clear up some things here. First, it is true that marijuana remains illegal under federal law anywhere and everywhere the U.S. has jurisdiction (in all states, including California). The federal government derives its authority to regulate marijuana under the Commerce Clause of the U.S. Constitution. A 2005 Supreme Court decision (Gonzalez v. Raich) involving a federal bust of a small marijuana plot in California owned by medical marijuana users affirmed that federal laws outlawing marijuana are valid under the Commerce Clause and can be enforced against wholly intrastate possession or cultivation of marijuana. Second, as the OP points out, the federal provision prohibiting the spending of federal funds enforcing federal marijuana prohibitions applies only to medical marijuana, not to “recreational” marijuana laws. So theoretically the feds could start busting people involved in so-called "adult use” marijuana businesses despite that provision, which is called the Rohrabacher-Blumenauer amendment. Third, while federal law is superior to state law, and while the federal government is free to enforce its laws anywhere, it does not have the constitutional power to force the states to enact state laws prohibiting marijuana. So California, or Alabama, for that matter, could repeal all of its laws outlawing marijuana (in other words make it completely legal to possess or sell any quantity of marijuana under state law), and neither Jeff Sessions or his malignant boss could do anything about it. That is not to say, however, that the feds couldn’t continue to enforce federal law in such state. However, they could not force state officials to enforce federal law. This is called the anti-commandeering principle of constitutional law.

Robert Paul Wolff said...

Anonymous, thank you for that very precise and clear exposition. If I used, which I do not, I do not think I would want to rely on the State Gov't to protect me from the Feds in this legal environment.

s. wallerstein said...

Since I smoked marijuana back in the days it was illegal everywhere under both State and Federal law and never got arrested, I guess I would smoke it more confidently today since it is legal under State law if I were in the United States.

In Chile smoking marijuana is not illegal, but growing it and selling it and (I believe)
buying it are. However, the law against growing it is not enforced much and there are "grow shops" everywhere.

Anonymous said...

That was a prescient post: