July 26, 2013
Little did they realize that it isn’t their decision to make; it is the federal government ‘s.
Need proof? Look no further than a recent raid by federal DEA (Drug Enforcement Agency) agents on marijuana dispensaries in Washington State. Medical marijuana dispensaries. And apparently, this isn’t the first time it’s happened.
These occurrences raise quite a few questions, the first being, “why go after medical marijuana when recreational use is legal?”
The feds’ motivation in raiding medical marijuana dispensaries rather than stores intended for recreational likely has little to do with some kind of policy choice.
Rather, they are simply choosing the bigger, easier target. After all, the voter-passed initiative that legalized recreational use in the state hasn’t even been fully implemented yet, so the DEA would have quite a difficult time finding any recreational users to prosecute.
Even still, this latest series of raids is significant for the fact that it is the first of such after the November 2012 elections that saw recreational marijuana use decriminalized (at least, under state law).
Where’s the significance?
In December of last year, President Obama publicly stated that the “voters” of Washington had “[spoken] on the issue” and that “it does not make sense from a prioritization point of view for us to focus on recreational drug users in a state that has already said that under state law that’s legal.”
True, he was speaking about recreational marijuana use, not medicinal, but the basic sentiment remains the same: Obama stated that he wasn’t planning on prioritizing the enforcement of federal marijuana bans in states where it has been legalized.
We actually don’t know. Obama hasn’t commented on the situation to explain his apparent reversal from seven months earlier.
However, since recent polls showed that the majority of Americans are in favor of legalizing pot – and that an even bigger majority are in favor of “letting the states decide” on the issue, there’s no way that Obama could believe that this move will help his popularity.
If anything, news of federal agents storming into medical marijuana dispensaries and confiscating all marijuana in a state where even recreational use is legal will just make Obama look like a bully.
So until Obama or an official from the Justice Department offers an explanation, we are just left guessing.
Perhaps the most important question raised by these raids, though, is – should they continue – whether they will lead to a change in federal drug laws.
Last December, I commented that “federal enforcement actions could open up interesting legal possibilities.”
The most interesting of these possibilities would be the challenging of a federal enforcement action on the grounds that Congress overstepped its authority in regulating an area that has traditionally been the province of the individual states.
I know that the 2005 Supreme Court ruling Gonzales v. Raich already answered this question. But things may have changed sufficiently from 2005 to make a different result possible, should a new challenge reach the highest court.
Justices Stevens and Souter – part of the original Raich majority – have been respectively replaced by Justices Kagan and Sotomayor, and we really don’t know how they would view the issue.
Moreover, Justice Kennedy could follow the example of his recent U.S. v. Windsor majority opinion in finding yet another situation in which the federal government has overstepped its bounds.
Lastly, with last year’s National Federation of Independent Business v. Sebelius, congressional Commerce Clause authority just isn’t what it used to be. Should the Court look to that ruling for guidance, it’s very possible that federal drug laws could be struck down.
Before any of that can happen, though, someone has to actually challenge the validity of these laws.
But with the federal raids seemingly starting up once again, we may not have long to wait for this to happen.