Marijuana Still Illegal Throughout the USA (Yes, Even in Colorado)

 

 

 

A (Much) Better Lawyer than the New York Times

 

 

A headline in today's The New York Times declares Attorney General Holder's purported belief that "Legal Marijuana Business Should have Access to Banks."   According to the article, which appears here, Holder expressed this opinion in remarks delivered at the University of Virginia's Miller Center.  In particular, the article reports that the Department of Justice will soon issue guidance to banks assuring such institutions that they accept deposits from enterprises that sell marijuana in states such as Colorado where many such sales do not violate state law.   The article follows a January 11 article, also in the Times, entitled "Banks Say No to Marijuana Money, Legal or Not."  

 

The Times is apparently confused about the meaning of "legal" and the relationship between state and federal law.   It's hard to imagine that the Attorney General, a very good lawyer, referred to the sale of marijuana in states such as Colorado as "legal" or referred to enterprises selling such marijuana as "legal businesses."  Indeed, despite the headline, the article does not quote the Attorney General as referring to such conduct as "legal" or any synonym thereof.

 To be sure, the production, possession and sale of marijuana does not violate the law of Colorado or certain other states in certain circumstances.  Moreover, the Department of Justice has declared that, with some exceptions, it will not bring criminal prosecutions against individuals or businesses that possess, purchase or sell marijuana in compliance with state law, so long as the states in question "establish strict regulatory schemes that protect eight federal interests."  However, Congress has not repealed the federal ban on the possession and sale of marijuana.  In addition, the Supreme Court upheld this ban as within Congress's commerce power less than a decade ago, even though such possession was lawful in the state where the possessors resided.  See Gonzales v. Raich, 545 U.S. 1 (2005).    Thus, the Administration's refusal to devote scarce resources to the prosecution of relatively minor crimes does not thereby repeal federal law or otherwise render activity inconsistent with federal criminal statutes "legal."  Instead, as the memorandum announcing selective non-enforcement explained, the new policy "does not in any way alter the Department's authority to enforce federal law, including laws relating to marijuana, regardless of state law."  The memorandum also accurately notes that neither it "nor any state or local law provides a legal defense to any violation of federal law, including [laws banning the possession and sale of marijuana]." 

In short, regardless of recent legal developments in states like Colorado, there is no such thing as a "legal marijuana business" in the United States of America.  Instead, given the Constitution's Supremacy Clause, both the possession and sale of marijuana remain unlawful in every state and locality of the Union, without regard to state laws that purport to authorize the practice.  States cannot preempt otherwise valid federal statutes.  As the Supreme Court explained well over a century ago:

"The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct sovereignties, having concurrent jurisdiction in the State — concurrent as to place and persons, though distinct as to subject-matter."

See Claflin v. Houseman, 93 U.S. 130, 136-37 (1876) (emphasis added).

Short of repeal of federal statutory law banning the possession and sale of marijuana, one can imagine only one hypothetical scenario in which the Times' description would be partially accurate.  As previously explained on this blog, the President is not bound by the Supreme Court's interpretation of the Constitution but must instead exercise his or her independent judgment when discerning the meaning of the document.  Thus, a President who disagreed with Raich and believed that the National Government lacks the authority to regulate the purely intrastate possession and sale of marijuana could decline to enforce legislation purporting to ban such activity for that reason alone, and without regard to the content of state or local laws. 

If a President took and announced such a position, one could accurately state that such possession and sale was legal in those states (and only those states) that chose not to regulate such conduct.  Even here, however, such conduct would only be legal outside the courts, as judges would still be bound by the Supreme Court's determination in Raich.  Thus, a Presidential declaration that such regulation exceeded the power of Congress would not prevent judges from treating such conduct as unlawful when adjudicating cases properly before them.   So, for instance, a court could decline to enforce a contract for the purchase and sale of marijuana, in the same way that it would decline to enforce a contract in restraint of trade.  See Dr. Miles v. John D. Park & Sons, 220 U.S.  373 (1910) (holding that contract violating the Sherman Act was not enforceable and thus could not support a diversity action for tortious interference with contract).  Moreover, if an insurance contract limited coverage to accidents resulting from "lawful activities," a court could hold that the company need not pay compensation to an insured injured in the course of conducting the business of selling marijuana. 

It must be emphasized that the scenario just described is purely hypothetical.  After all, the Obama Administration has articulated and defended an extremely broad conception of Congressional power.  Indeed, the Administration has even claimed that Congress possesses the authority to compel  individuals to purchase health insurance against their will, a vision that the Supreme Court thankfully and properly rejected.  Unless and until this Administration or a future Administration adopts a less expansive (and more accurate) conception of the Commerce Power, the possession and sale of marijuana will remain entirely illegal, yes, even in Colorado. 

 

Who Will Fact-Check the Fact-Checkers?

Probably Had Better Fact-Checkers in 1942

The New York Times apparently needs a fact-checker to check its articles that purport to fact-check political speeches.

Case in point, an article in the Times today claims that Congressman Ryan's speech contained a "Litany of Falsehoods."   However, the very first example the Times provides is not a falsehood at all.  According to the Times:  "[r]epresentative Paul D. Ryan used his convention speech on Wednesday to fault President Obama for failing to act on a deficit-reduction plan that he himself had helped kill."  Congressman Ryan was referring to the recommendations of the Simpson-Bowles Commission, which President Obama appointed.  The Times offers no evidence that contradicts Congressman Ryan's assertion that President Obama failed to act on the Commission's recommendations.  Thus, Congressman Ryan's assertion stands unrebutted.

Instead, the Times claims that Congressman Ryan helped blocked the Commission's recommendations.   But the Times fails to note that, unlike President Obama, Ryan offered his own budget that would have cut the deficit.  Moreover, one of the Commission's co-Chairs praised Conrgessman Ryan's budget.   In fact, here is what Erskine Bowles, former Chief of Staff to President Clinton and co-Chair of the Simpson Bowles Commission, had to say about Congressman Ryan's proposed budget:

"And the budget that he [Ryan] came forward with is just like Paul Ryan. It is a sensible, straightforward, honest, serious budget and it cut the budget deficit just like we did, by $4 trillion... The President came out with his own plan and the President, as you remember, came out with a budget, and I don’t think anybody took that budget very seriously. The Senate voted against it 97 to nothing."  (Bowles goes on to assert that, after much pressure, the President finally offered a budget with back-ended spending reductions that would have achieved about $2.5 Trillion in deficit reduction, that is, 37.5 percent less than proposed by Simpson-Bowles.

In sum, Congressman Ryan's assertion that President Obama failed to act on the Simpson-Bowles recommendation is unrebutted.  Moreover, unlike President Obama, Congressman Ryan introduced a budget that achieved the same level of deficit reduction as the Simpson-Bowles Commission.   The Times' assertion to the contrary appears to be, well, a falsehood, though no doubt an inadvertent one. 

On the Legality of Congressionally-Authorized Drone Strikes

Understood the Nature of Wartime "Due Process"

In a house editorial today the New York Times criticizes President Obama for what it calls "unilateral" decisions to kill terrorists "without the consent of someone outside his political circle."  According to the Times:

"No one in that position [a President running for re-election] should be able to unilaterally order the killing of American citizens or foreigners located far from a battlefield — depriving Americans of their due-process rights — without the consent of someone outside his political inner circle. . . . .It is too easy to say that this is a natural power of a commander in chief. The United States cannot be in a perpetual war on terror that allows lethal force against anyone, anywhere, for any perceived threat. That power is too great, and too easily abused, as those who lived through the George W. Bush administration will remember."  President Obama, the Times says, believes that "the shadow war on terrorism gives it the power to choose targets for assassination, including Americans, without any oversight."

The Times editorial follows other "Progressive" commentary critical of the President's use of drone strikes to kill suspected terrorists.

The Times and other Progressives are wrong on at least three counts.  First, there is no indication that the Obama Administration is claiming the right to kill any and all purported "terrorists."  Instead, all published reports indicate that the Administration is targeting members or affiliates of Al Qaeda, the organization responsible, by its own admission, for several attacks on the United States, and an organization that has not surrendered to the United States.   Thus, any "war on terror" is in fact a "War on Al Qaeda."   Second, neither President Obama, nor President Bush before him, initiated this war "unilaterally."  Instead, both have simply carried out the will of the people as expressed by the Congress of the United States shortly after the September 11 attacks.  Third, drone strikes that kill individuals the President believes to be members of Al Qaeda do not violate "due process."

Congress could have responded to the September 11 attacks by authorizing more aggressive law enforcement activity, whereby the FBI would arrest (or attempt to arrest) suspected members of Al Qaeda for trial in U.S. Courts.  Instead, and as previously explained on this blog, Congress rejected the "law enforcement" approach taken during the 1990s, an approach which had failed to prevent numerous terrorist attacks on the United States and its interests.  That is, Congress, on September 18 2001, exercised its war powers and passed the "Authorization to Use Military Force," ("AUMF") reproduced in full below.   That Resolution empowers the President, as "Commander-in-Chief of the Army and the Navy of the United States," to employ "force" against those  "nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."   As previously explained on this blog, the AUMF contains no geographic limitation, but instead authorizes the President to employ "force" against any individual that "he determines" (without any requirement of additional process) to be in the identified class, whether or not they are on or near any battlefield.  (In the same way, the December 9, 1941 Declaration of War against Germany contained no such geographic limitation.)  Nor does the AUMF purport to immunize from attack American citizens who join Al Qaeda.    So far as this blogger is aware, no one has alleged that either President Obama or President Bush has targeted individuals, even suspected terrorists, outside the class identified in the AUMF.  President Obama no more needs "outside consent" for such strikes than FDR needed such consent before ("unilaterally") ordering the invasion of France.

To be sure, one can imagine scenarios in which  a hypothetical President abuses and exceeds the power that Congress has granted, whether the AUMF or the formal Declaration of War against Germany.  However, as Joseph Story explained nearly two centuries ago, the fact that a power may be abused is no argument against it.  So long as the President merely exercises the authority that Congress has granted him, suspected members of Al Qaeda have received all the "process" they are due.  As Colonel Kirby (pictured above), played by John Wayne noted in the Green Berets "[o]ut here, Due Process is a bullet."  Today he might add "or a Congressionally-authorized drone strike."

Update (June 1, 2012).  Two comments take issue with my assertion that Congress may authorize military force against American citizens whom the President determines have taken up arms against the United States.  I appreciate the opportunity to provide some additional elaboration on my views.

1.  The Due Process Clause does not distinguish between American citizens and other "persons." In any event, the Constitution itself apparently contemplates the use of military force against American citizens.  Article I, Section 8 empowers Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions." (emphasis added)   Suppression of an insurrection can entail the use of lethal force, without a pre-deprivation hearing, against citizens who have taken up arms against the United States and participated in the insurrection.  President Washington suppressed such a (short-lived) insurrection in 1794 --- the so-called "Whiskey Rebellion" --- exercising the authority to employ the militia for this purpose that Congress had granted him in the Militia Act of 1792.  President Lincoln suppressed a rebellion from 1861-65, and he ordered an invasion of several Southern states to do so.  In my view, an American citizens who joins the army of a foreign power is, as a constitutional matter, indistinguishable from an American citizen who joins a domestic insurrection.  

2.  The conduct of war necessarily requires military commanders and soldiers to distinguish between combatants and non-combatants.  This is true whether the soldiers are suppressing an insurrection at home or invading an enemy abroad.  That is, they must "determine" (the language employed by the AUMF) whether various individuals are members of rebel forces (if at home) or enemy forces (if abroad).  When Admiral Halsey ordered American fighters to shoot down an aircraft on April 18, 1943, he did so because he "determined" that the plane was transporting Japanese Admiral Yamamoto.   He was right, and the mission was successful.  If he had been mistaken and the fighters had destroyed a civilian aircraft, that would have been a tragedy.  However, the possibility of such a wartime tragedy does not in my view mean that the attack deprived Admiral Yamamoto of due process of law.  Nor would such a mission have contravened due process if instead Halsey had targeted a fictitious American Admiral Murphy because he "determined" that Murphy had gone over to the enemy and thus chosen to wage war on the United States.  (Imagine if, during World War II, thousands of Americans had fled the country and enlisted in the German Army.  Imagine further that Germany had formed a division from these soldiers and deployed them to defend Normandy.  Surely President Roosevelt could still order an invasion of Normandy without some sort of judicial hearing beforehand.)

3.   As noted in my initial post, any President could abuse the power granted by the AUMF.  President Obama could, for instance, decide to launch drone strikes on random American citizens or random citizens of other countries.  (He could also do this absent the AUMF, by the way.)  In the same way, President Roosevelt could have ordered the battleships of the Atlantic Fleet to shell American cities, claiming that such cities had sworn loyalty to Germany.   All of these actions would exceed the authority conferred on the President by the relevant statutes (the AUMF or the Declaration of War against Germany) and the Constitution.  That is to say, President Obama's hypothetical drone attack on American cities would not be the result of an actual "determination" that the targeted citizens were members of Al Qaeda.  Thus, such orders, if carried out, would be murder --- the unprivileged taking of a human life and thus subject to prosecution under the law of the state where the murder took place.

So far as I know, however, no one has asserted that the drone strikes ordered by President Obama do not rest on a good faith "determination" that the targeted individuals have joined Al Qaeda and taken up arms against the United States.

Here is the full text of the Congressional Resolution that the Times and others have ignored:

One Hundred Seventh Congress

of the

United States of America

AT THE FIRST SESSION
Begun and held at the City of Washington on Wednesday,
the third day of January, two thousand and one

Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.