Former House Counsel Overseeing DEA Says Drug Chiefs’ Prop 19 Plea More About Politics Than Facts

Earlier today, a collection of former chiefs of the Drug Enforcement Administration garnered a lot of media attention for voicing opposition to California’s Proposition 19. As Jane Hamsher explained:

Nine former DEA heads held a press conference this morning to promote their letter to Eric Holder, asking the Justice Department to intervene and challenge Prop 19 if it passes (PDF). They claim that since the Justice Department moved so quickly to oppose the Arizona immigration law, it’s their obligation to do the same here.

I worked directly with DEA Administrators Bensinger, Mullen, and Lawn in the 1980s, and have had debates or conversations with Bonner, Constantine, and Hutchinson.

First, this letter (PDF) is the clearest indication that the drug prohibition establishment recognizes the political attractiveness and unique importance of Prop. 19. I cannot recall any previous collaboration of former DEA Administrators of this kind. If our national marijuana prohibition policy were not so clearly failing and not so close to being replaced with real controls, they would never have mobilized in this way to defend it. If Prop. 19 were not proposing a system of control that is so logical and straight forward that it is widely politically attractive, they would not be mobilizing this kind of collaboration.

Second, this letter makes a most cursory defense of our failed marijuana policy in calling for an extraordinary remedy: block Prop. 19 in the court because it is a political challenge to premises of the federal law.

Do the former DEA Administrators defend the federal marijuana prohibition with evidence that marijuana’s harms to users are so great that users must be denied the liberty to take the minimal risks attendant to its use? No, they cite an annual "strategy document" that has historically been an instrument of political propaganda, and was never taken seriously a genuine policy or planning document for addressing public safety or public health problems.

Do the former Administrators defend the current prohibition policy because it reduces crime? Of course not.

Do they offer any argument that the United States will be harmed if California legalizes adult use of marijuana? No.

Do they suggest that the international prestige of the United States will be undermined in any respect of Prop. 19 passes? Of course not, for the opposite is true as suggested by the recent Washington Post commentary of Mexico’s former foreign minister, Jorge Castaneda.

Third, they are wrong on the key question regarding the merits of the lawsuit they desire the Attorney General to file. Proposition 19 withdraws California enforcement of its marijuana law which is its Constitutional prerogative. The Supreme Court ruled in the Printz case that Congress cannot "commandeer" state officials to enforcement federal laws. This is different from the Arizona immigration situation in which Arizona sought to authorize state conduct based on federal immigration status, and to create offenses based on federal immigration status. Immigration is explicitly a Federal power in Article I, section 8 of the Constitution. Marijuana prohibition is not in the Constitution. Federal power over marijuana is based on the commerce clause. Our law is filled with areas in which there is both federal and state regulation of various aspects of commerce. The Controlled Substances Act, unlike the Federal Communications Act, does not exclude states from regulation.

On its face, Prop. 19 is a completely different concept. Historically, Prop. 19 is akin to the act of the New York legislature repealing its alcohol prohibition law in 1923 which was perfectly lawful and Constitutional.

Eric E. Sterling is the President of The Criminal Justice Policy Foundation, a private non-profit educational organization that helps educate the nation about criminal justice problems. As a former Assistant Counsel to the U.S. House of Representatives Judiciary Committee (1979-1989), Mr. Sterling was responsible for writing federal drug laws. He serves on the advisory board of Just Say Now.

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