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The voters of Washington state and Colorado have put the Federal government, especially President Obama, in a bind by legalizing (to varying degrees) marijuana. Article II of the Constitution requires the President to "take care that the laws be faithfully executed"--not just the laws the President likes, but all the laws. And the Supremacy Clause of the Constitution ensures that Federal law trumps state law, as that little kefuffle called the Civil War settled.

On the other hand, anyone with an ounce of sense can see the war against marijuana should never have been fought to begin with, and is now good as lost. Prolonging it only results in needless expense and human suffering.

What's a President with a conscience to do?

There's a reasonable, legal way out--recently, helpfully, and most ironically pointed out by Supreme Court Justices Scalia, Thomas, Kennedy, Alito, and Roberts.

The puzzle solved, over the fold.

The key is dealing with medical and non-medical marijuana separately.

Medical marijuana

Cannabis is currently on Schedule I of the Controlled Substances Act. That's the schedule for drugs with (supposedly) no medical value, and it carries the tightest restrictions. Schedule I drugs cannot even legally be prescribed.

The Controlled Substances Act has five schedules in total, with Schedule V carrying the least restrictions. Schedule V drugs are judged to have low potential for abuse, a currently accepted medical use, and to lead to only limited physical or psychological dependence. Drugs on schedules II through V can legally be prescribed, but cannot legally be obtained without a prescription.

The CSA gives the Attorney General authority, via a rulemaking process, to move cannabis from Schedule I to a different schedule. The Attorney General is, of course, a cabinet officer who answers to the President.

So President Obama could make marijuana a legal prescription drug nationwide by directing the Attorney General to reschedule it. No action from Congress needed.

Recreational marijuana

Recall that the United States government has not unlimited powers, but only the specific powers enumerated in the Constitution. (Tea Partiers never cease to remind us of this, except when they're complaining the government doesn't do enough to regulate sex and reproduction.) Congress's power to do a lot of things we take for granted comes from the Commerce Clause, which gives it power to regulate interstate commerce. Since the New Deal the Supreme Court has interpreted the Commerce Clause quite broadly. For instance, in Wickard v. Filburn (1942) the Supremes held that a farmer who only grew wheat to feed his own chickens and cattle was nevertheless affecting interstate trade in wheat, because by not buying wheat he drove down the interstate market price just a smidgen. And a smidgen was enough to bring the farmer under the Commerce Clause.

But though Congress's Commerce Clause powers are great, they still have limits. Earlier this year, in National Federation of Independent Business v. Sebelius, the Supremes held Obamacare's individual mandate could not be authorized under the Commerce Clause, because--according to Justices Scalia, Thomas, Kennedy, Alito, and Roberts--not buying health insurance is not like not buying wheat. (The Obamacare individual mandate was upheld under the Tax Power instead. The difference led to one of the Great Screwups in Journalism.)

Other modern Supreme Court cases finding limits to Congressional Commerce Clause authority are United States v. Lopez and United States v. Morrison.

Well, guess what Constitutional power authorizes Congress to regulate drugs via the Controlled Substances Act? Yep--our buddy the Commerce Clause.

President Obama could announce:

In light of National Federation of Independent Business v. Sebelius, United States v. Lopez, and United States v. Morrison, I do not believe a person who grows or possesses a small amount of marijuana for personal use, or for noncommercial sharing with friends, affects interstate commerce. Therefore, I do not believe the Commerce Clause authorizes the United States government to regulate personal growth or possession of marijuana in small amounts. In consultation with the Attorney General, I am today directing the Justice Department, including the FBI and DEA, to cease investigating or prosecuting anyone growing six or fewer marijuana plants, or possessing less than one ounce of marijuana.
Why is growing your own pot different from growing your own wheat (which was held to affect interstate commerce in Wickard)? Because the farmer was growing wheat to use in his business--which was raising chickens and cattle. As far as I know, nobody smokes pot professionally. At least not anymore; arguably Cheech and Chong made a go of it for awhile. If, in the happy future, a professional pot-smokers' league develops, well, we'll just have to cross that bridge when we come to it.

I got six plants and one ounce from Colorado's new law, which imposes those limits for recreational marijuana. So my proposed new Federal policy would, it seems, square nicely with Colorado.

Washington state is a different story. Under Washington's new law, you'll need a state license to grow or sell any amount of recreational marijuana, and the law envisions a state-regulated commercial network of producers, distributors, and retailers, analogous to what's done with alcoholic beverages. That would obviously violate the Controlled Substances Act, even under my proposed new interpretation. But a Washington license will cost $250 for the first year, and $1,000 per year after that; there are probably plenty of folks who would be willing to pay that for the ability to grow their own and enjoy it at home without worry. And let's face it, so long as a small percent of people do that, the Washington authorities aren't going to find it worthwhile to check every home garden for a license. So the envisioned commercial network might never develop, or would develop for medicinal pot only. (Why would any Washingtonian who could grow her own bother buying it with a prescription? Maybe to benefit from expert hybridization of a blend best suited to treat particular symptoms. Or maybe she'd just grow her own. For President Obama's purposes, it doesn't matter.)

But hold on a second, HeyMikey, some readers are no doubt muttering--you admitted the Constitution doesn't let the President pick and choose which laws to enforce; and the Controlled Substances Act, in all its minute-amounts-of-marijuana-regulating-glory, is a law. So how can the President choose to enforce it only partly? And the answer is that the Constitution is a higher law. For instance, the President has already directed the Justice Department to stop defending DOMA because he's concluded it's unconstitutional. (BLAG, which represents Republican members of Congress, is now defending DOMA.) He could do the same with the CSA as it pertains to personal, non-commercial marijuana.

There you have it--a way for President Obama to do both the right thing and the Constitutional thing. Truth, justice, and the American way.


Is this the best plan, given the current options?

63%30 votes
4%2 votes
10%5 votes
4%2 votes
17%8 votes

| 47 votes | Vote | Results

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Comment Preferences

  •  Tip Jar (15+ / 0-)

    "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

    by HeyMikey on Sun Dec 09, 2012 at 06:00:16 AM PST

  •  that'd be an optimal solution, (0+ / 0-)

    but it won't happen.  even though polls are starting to show majorities in favor, that doesn't mean a majority of congressional districts will approve a move like that.  we just don't know what the politics of a scheduling change would look like, and Obama doesn't want to hurt Democrats.  he certainly wouldn't open this culture war pandoras box before midterms, and I doubt he will after, either.  even if he favors that move, there will probably be a lot of intraparty pressure not to make any big changes without having a very, very good idea of what the fallout would look like.

    •  re wheat v weed: (0+ / 0-)

      whether its used in a business or not doesn't matter a lick. the feds can regulate pot, whether used in business or for personal use or whatever. (raich v Gonzales)

      so Obama really couldn't carve out personal use or medicinal use from enforcement.  

      •  Ah, but the Gonzales case was before (0+ / 0-)

        the Supreme Court's Commerce Clause ruling on the ACA. Clearly, they've changed their minds about the limits of the Commerce Clause.

        Let Obama throw it right back in their faces. Now, that would be sweet.

        •  the PPACA ruling didn't impact Gonzales (0+ / 0-)

          in the slightest.

          •  I think you're right, actually. (0+ / 0-)

            I quickly scanned Gonzalez v. Raich before writing the diary, and saw the part where the respondents conceded the CSA is Constitutional. What's conceded is not part of any holding; thus I thought Raich would not be a barrier.

            I should've kept reading. Raich explains Wickard v. Filburn as saying that the existence of an interstate market makes it somewhat likely that crops supposedly for home consumption will in fact get drawn into the interstate market. That likelihood gives Congress power to regulate crops grown for home consumption.

            In theory, of course, this makes it possible for Congress to regulate every vegetable and flower garden in America. Much as I hate to agree with Justice Thomas on anything, I think his dissents in these cases are worth taking seriously.

            "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

            by HeyMikey on Sun Dec 09, 2012 at 08:52:16 AM PST

            [ Parent ]

    •  well, he's going to have to do something (5+ / 0-)

      He can't just ignore the laws in Co. and Wa. Since public opinion on this issue seems to have reached the tipping point in favor of a more measured approach, he'd be doing the Democrats much more harm if the DOJ comes down on those states like a ton of bricks.
      I've felt that reclassification should have been done years ago, since there is ample scientific evidence that there are many possible medical uses for Mj. A collection of pro-pot groups recently took the FDA to court to get them to reclassify Mj., but I've never heard if a decision was made in that case.
      This seems like not only the right approach from a practical point of view, but from the political point of view as well.
      What would you propose instead?

  •  There is a much simpler solution. (3+ / 0-)
    Recommended by:
    chmood, cherie clark, Chi

    The 10th amendment allows the president a way out of this mess, and citing it in declining to prosecute crimes which are no longer crimes within the states would confound a bunch of self-proclaimed "patriots" who cite the 10th inappropriately.

    Win-win, imo.

    Pardon our dust. Sig line under renovation.

    by Crashing Vor on Sun Dec 09, 2012 at 06:36:25 AM PST

    •  that's some John Birch stuff. (2+ / 0-)
      Recommended by:
      Crashing Vor, FG

      I think its safe to say that there isnt a snowball's chance in hell of the administration adopting that position.

      •  That the amendment is misunderstood (5+ / 0-)

        and improperly cited by some doesn't make it, by nature, wrong, any more than the use of cayenne in pepper spray negates its value in shrimp creole.

        Pardon our dust. Sig line under renovation.

        by Crashing Vor on Sun Dec 09, 2012 at 06:57:44 AM PST

        [ Parent ]

        •  My understanding is that when ever a state law (1+ / 0-)
          Recommended by:
          Crashing Vor

          grants greater protection or rights then the Federal Law is moot. This is how we got marriage equality in the face of DOMA.

          The work goes on, the cause endures, the hope still lives and the dreams shall never die. ~ Edward M. (Ted) Kennedy

          by cherie clark on Sun Dec 09, 2012 at 09:03:35 AM PST

          [ Parent ]

          •  nope. (0+ / 0-)

            federal law trumps.

            •  I believe you are incorrect or we wouldn't have (1+ / 0-)
              Recommended by:

              marriage equality. States have from the beginning passed laws that gave greater protection or rights. I looked it up on Wiki just to make sure I remembered because it is a perfect example of what I am talking about.

              The first territorial legislature of the Wyoming Territory granted women suffrage in 1869.[44] In 1890, Wyoming under Republican control was admitted to the Union as the first state that allowed women to vote, and in fact insisted it would not accept statehood without keeping suffrage.[citation needed] On September 6, 1870, Louisa Ann Swain of Laramie, Wyoming became the first woman to cast a vote in a general election.[45][46] In 1893, voters of Colorado made that state the second of the woman suffrage states and the first state where the men voted to give women the right to vote.[47] In 1896 Idaho approved a constitutional amendment in statewide vote giving women the right to vote.

              The work goes on, the cause endures, the hope still lives and the dreams shall never die. ~ Edward M. (Ted) Kennedy

              by cherie clark on Sun Dec 09, 2012 at 11:03:56 AM PST

              [ Parent ]

              •  No, actually different reasoning. (0+ / 0-)

                DOMA is falling because of the US Constitution's guarantee of equal protection.

                The road to women's suffrage took a quite different path of reasoning. Worth reading:

       (including the part about Justice Harlan in the 1960s)


                Basically, before the 19th Amendment it was left up to the states to decide who could and couldn't vote. The 14th Amendment said states couldn't make that decision based on race, but still allowed poll taxes, literacy tests, etc.--including restriction to males--until the civil rights era of the 20th century, well after the adoption of the 19th Amendment.

                "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

                by HeyMikey on Sun Dec 09, 2012 at 01:33:33 PM PST

                [ Parent ]

    •  Umm... Subject of treaty, bargained collectively (1+ / 0-)
      Recommended by:
      johnny wurster

      State's rights argument died back in the sixties.

      If ya don't mind losing access to abortion, and locking our black folk up again, I guess this could make sense- Never ever clear a courtroom, but make sense...

  •  I'd love for marijuana to be legalized in the near (6+ / 0-)

    future. Haven't partaken in many years. I quit smoking when we decided to get pregnant and never started up again because of legal concerns. But I'm looking forward to the day when I can light up a joint or a water pipe (what happened to my old one? where did it go?) and make the most tedious household tasks fun.
    Since I have no legal training, I have no idea whether your ideas would work, but I give you kudos for presenting your thoughts.

    We're not perfect, but they're nuts! -- Barney Frank

    by Tamar on Sun Dec 09, 2012 at 06:47:11 AM PST

  •  Umm...not sure POTUS can negate treaty (1+ / 0-)
    Recommended by:

    by EO.

    Ban on retail sales, status in " most controlled class"  required by UN Single Convention.

    We could ignore the laws on the books, Dutch style, or make personal possession legal Portugal style, but I don't see a mechanism to get to "legal" w/o withdrawing from a bunch of treaties.

  •  Constitution (0+ / 0-)
    Article II of the Constitution requires the President to "take care that the laws be faithfully executed"--not just the laws the President likes, but all the laws.
    How about the execution of the law against illegal immigrants? Didn't the President chose to ignore laws there?
  •  Simply rescheduling (5+ / 0-)

    to Schedule V resolves almost all the problems of "commercial" sales, and it makes personal growing for personal use a trivial "offense" at worst, with no reason for even a single enforcement dollar.

    But to find the dirty underbelly of marijuana prohibition just ask "who cares, and why?".  It's not the weed that they're after . . .

    Fake Left, Drive Right . . . not my idea of a Democrat . . .

    by Deward Hastings on Sun Dec 09, 2012 at 09:30:30 AM PST

    •  I'd prefer it be "rescheduled" (3+ / 0-)
      Recommended by:
      Deward Hastings, Woody, pistolSO whatever schedule backyard tomatoes are "regulated." And end the whole "piss-cup" routine while they're at it.

      The dire straits facing America are not due poor people having too much money

      by Anthony Page aka SecondComing on Sun Dec 09, 2012 at 10:10:01 AM PST

      [ Parent ]

      •  Or home brewed beer or wine . . . (2+ / 0-)

        you're not going to get busted for a 5 gallon carboy and a fermentation lock (or a gallon-per-day still, although that's "more illegal").

        Fake Left, Drive Right . . . not my idea of a Democrat . . .

        by Deward Hastings on Sun Dec 09, 2012 at 11:03:09 AM PST

        [ Parent ]

        •  Homebrewing is legal. (1+ / 0-)
          Recommended by:

          Federal law against homebrewing was ended during the Carter administration. I'm not sure of the details, but basically federal law allows you to brew a small amount for noncommercial use.

          After that it took till around 1990 before all of the states did away with their homebrewing restrictions. Georgia (my state) was, I believe, the last to do so.

          I'm a lawyer, and homebrewed for several years in Georgia in the late 1980s and early 1990s, which is how I came to learn this stuff.

          "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

          by HeyMikey on Sun Dec 09, 2012 at 01:38:39 PM PST

          [ Parent ]

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