Anti-Pot Congressmen Indirectly Admit Obama Has a Way to Let DC Legalize Marijuana

Rep. Andy Harris (R-MD) is the anti-pot crusader who has been working diligently to undermine democracy in the District of Columbia to try to stop local marijuana reform, but he may have accidentally validated arguments that President Obama has the power to easily undo his efforts. In the Washington Post he wrote an op-ed with Rep. Joe Pitts (R-PA) defending the rider they had inserted in the omnibus spending bill during backroom negotiations. Note these important lines:

Federal policy on marijuana is neither arbitrary nor set in stone. Proper procedures exist for changing the way that marijuana is regulated in the United States, but a ballot initiative in the federal district is not one of them. If the city were allowed to proceed, it would create legal chaos.

The classification of marijuana as a Schedule I controlled substance was made through a legal and scientific process established by Congress and administered by the Food and Drug Administration and the Drug Enforcement Agency. This classification means that the drug has a high potential for abuse, has no accepted medical use and cannot be used safely even under medical supervision. […]

The FDA and DEA have a process for analyzing such studies and approving controlled substances. We do not let any other substance become approved by ballot initiative. Every drug must be subject to the same strict scrutiny.

This is significant because the actual language of the rider only prohibits funds from being spent on enacting laws to legalize “any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.” Notably the rider doesn’t explicitly prohibit D.C. from using funds next year to legalize “marijuana,” which it easily could have done.
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Anti-Pot Congressmen Indirectly Admit Obama Has a Way to Let DC Legalize Marijuana

Rep. Andy Harris (R-MD) is the anti-pot crusader who has been working diligently to undermine democracy in the District of Columbia to try to stop local marijuana reform, but he may have accidentally validated arguments that President Obama has the power to easily undo his efforts. In the Washington Post he wrote an op-ed with Rep. Joe Pitts (R-PA) defending the rider they had inserted in the omnibus spending bill during backroom negotiations. Note these important lines:

Federal policy on marijuana is neither arbitrary nor set in stone. Proper procedures exist for changing the way that marijuana is regulated in the United States, but a ballot initiative in the federal district is not one of them. If the city were allowed to proceed, it would create legal chaos.

The classification of marijuana as a Schedule I controlled substance was made through a legal and scientific process established by Congress and administered by the Food and Drug Administration and the Drug Enforcement Agency. This classification means that the drug has a high potential for abuse, has no accepted medical use and cannot be used safely even under medical supervision. […]

The FDA and DEA have a process for analyzing such studies and approving controlled substances. We do not let any other substance become approved by ballot initiative. Every drug must be subject to the same strict scrutiny.

This is significant because the actual language of the rider only prohibits funds from being spent on enacting laws to legalize “any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.” Notably the rider doesn’t explicitly prohibit D.C. from using funds next year to legalize “marijuana,” which it easily could have done.

Harris seems to claim in his op-ed that his main legal problem with marijuana legalization in D.C. is that it would conflict with the federal government’s classification of marijuana as a schedule I drug. This implies the use of the term “any schedule I substance” instead of “marijuana” wasn’t sloppy drafting, but purposeful.

The Controlled Substance Act explicitly gives the Obama administration the power to unilaterally move marijuana to a lower schedule. So if the Obama administration moves marijuana to schedule II, III, or IV this rider would no longer impede the D.C. Council from moving forward with legalizing, taxing and regulating marijuana.

Even if the basic democratic rights of the 650,000 people living in D.C. weren’t at stake, the Obama administration should still reschedule marijuana now based purely on logic and the current science.

The federal government effectively acknowledged marijuana’s medical value years ago when it moved synthetic THC, the main ingredient of marijuana, to schedule II and later to schedule III. In addition, the way the government treats other plants that contain scheduled drugs is to put the plants in the same schedule as these pure drugs. For example opium poppy is schedule II along with morphine, and coca leaves are also in schedule II, just as cocaine.

If Obama actually opposes Congress interfering with D.C. home rule and trying to overturn local elections, it appears he has the power to fix it this time.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

Making All the People Unhappy All the Time

Congress’s overall approval rating continues to remain extremely bad, but in their terribleness they have managed to achieve something that would be impressive if it wasn’t so depressing. Gallup found that disapproval with Congress is basically equal among all political groups. Regular Republicans, Democrats and Independents all have an almost identically bad opinion of Congress. From Gallup:

Congress' Job Approval Ratings, Yearly Averages by Party

Divide government doesn’t lead to compromise or “moving to the middle.” It results in crippling gridlock with the only laws being approved are must pass omnibus bills loaded down with corrupt backroom deals.

When your political system is making everyone unhappy it is time you start seriously questioning how your country runs its elections. The dysfunction of the past two years wasn’t actually the result of the voting public wanting divided government, but the result of really bad election rules. Democrats actually won the popular vote for the House, but bad election rules let Republicans win a majority of the seats. Being able to win with only a minority of public support has created terrible political incentives that undermine effective governance. There are other election system used in other countries which would eliminate this problem. It is possible to assure that the party with the least votes never ends up wining the most seats.

Omnibus Funding Bill is a Mixed Bag for Marijuana Reform

Late Saturday, the Senate approved an omnibus bill funding the federal government for the next year which contained two big provisions affecting marijuana policy. One very good and one very bad.

On the positive side: Protection for medical marijuana patients.

The funding bill contained a provision preventing the Department of Justice from using funds to arrest or prosecute medical marijuana patients or businesses that are in compliance with state medical marijuana laws. Combined with the Obama administration taking a more hands off approach with regard to local marijuana laws, this new provision should provide added peace of mind and a sense of stability to both patients and providers.

Having Congress no longer actively opposing medical marijuana is a big victory for the reform movement, but not a complete solution. The provision is only a short-term and incomplete fix. Medical marijuana is still technically illegal under federal law which will continue to cause issues with things like taxes for medical marijuana business. The provision also only applies to this one year funding bill.

On the negative side: Assault on the democratic rights of people living in the District of Columbia.

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Omnibus Funding Bill is a Mixed Bag for Marijuana Reform

Late Saturday, the Senate approved an omnibus bill funding the federal government for the next year which contained two big provisions affecting marijuana policy. One very good and one very bad.

On the positive side: Protection for medical marijuana patients.

The funding bill contained a provision preventing the Department of Justice from using funds to arrest or prosecute medical marijuana patients or businesses that are in compliance with state medical marijuana laws. Combined with the Obama administration taking a more hands off approach with regard to local marijuana laws, this new provision should provide added peace of mind and a sense of stability to both patients and providers.

Having Congress not longer actively opposing medical marijuana is a big victory for the reform movement, but not a complete solution. The provision is only a short-term and incomplete fix. Medical marijuana is still technically illegal under federal law which will continue to cause issues with things like taxes for medical marijuana business. The provision also only applies to this one year funding bill.

On the negative side: Assault on the democratic rights of people living in the District of Columbia. 

Another provision buried in the omnibus bill is meant to prevent the District of Columbia from moving forward with marijuana legalization. Even though the 650,000 people living in D.C. are denied any vote in Congress, the federal government still has the ability to override any local laws. House Republican insisted on abusing this unfair and anti-democratic Constitutional power to try to stop marijuana legalization in D.C. despite it being adopted by almost 70 percent of District voters last month.

While President Obama claims to oppose the provision, he decided to effectively sacrifice the basic rights of 650,000 people to prevent government shutdown. If Obama really does oppose this assault on the very principles of democracy, he potentially has the power to give the D.C. government a legal way around this attempt to overturn the will of the voters. For example if Obama used his power to move marijuana to a lower schedule, this provision would technically no longer be an issue.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

We’re Not Very Good at Bombing Countries into Peace and Prosperity

After over a decade of military involvement in Afghanistan and billion spend on trying to build it up, the nation is arguably the worst place on Earth to live and things still are deteriorating. From Gallup:

More than six in 10 Afghans evaluate their lives poorly enough to be considered “suffering” — the highest figure ever recorded for any country since Gallup started tracking life evaluations in 2005. As in 2013, no Afghans rate their lives highly enough to be considered “thriving.

Six in 10 Afghans

The fact that things are really bad in Afghanistan isn’t exactly news, but it is something that isn’t discussed enough in debates about future foreign policy decisions.

If we look back at are last three big military involvements in foreign countries to change their political leadership (Afghanistan, Iraq, Libya) these countries are now in truly terrible shape. The United States is incredibly bad at using force to try to bring peace and prosperity.

 

D.C. Marijuana Reform Offers a Real Test of Obama’s Principles

President Obama decided to actively lobby for the omnibus spending bill, which included a policy rider intended to block marijuana legalization in D.C. after the people of the District overwhelmingly voted for it. The rider was designed to strip the basic right of democratic self determination from the voters of D.C., effectively disenfranchising the predominately African-American and Hispanic people living in the District. The voting rights and democracy of some 650,000 people were basically sold out by Obama to possibly avoid government shutdown fight.

Fortunately, the actual legislative language of the rider leaves open several options Obama could use undo the terrible damage he helped inflict. The rider reads:

“None of the funds contained in this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.

1) How do we define “enacted?”

It is the position of the D.C.’s non-voting Congresswoman, Eleanor Norton Holmes (D), that Initiative 71 was officially “enacted” last month when the voters overwhelmingly approve it, so no funds will actually need to be spent next year to “enact” it. This means the initiative can be sent to Congressional review in January and implemented after it clears that hurdle. If Congress wanted to prevent D.C. from spending money to implement legalization they should have used the word “implement.”
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D.C. Marijuana Reform Offers a Real Test of Obama’s Principles

President Obama decided to actively lobby for the omnibus spending bill, which included a policy rider intended to block marijuana legalization in D.C. after the people of the District overwhelmingly voted for it. The rider was designed to strip the basic right of democratic self determination from the voters of D.C., effectively disenfranchising the predominately African-American and Hispanic people living in the District. The voting rights and democracy of some 650,000 people were basically sold out by Obama to possibly avoid a government shutdown fight.

Fortunately, the actual legislative language of the rider leaves open several options Obama could use to undo the terrible damage he helped inflict. The rider reads:

“None of the funds contained in this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.

1) How do we define “enacted?”

It is the position of D.C.’s non-voting Congresswoman, Eleanor Norton Holmes (D), that Initiative 71 was officially “enacted” last month when voters overwhelmingly approved it, so no funds will actually need to be spent next year to “enact” it. This means the initiative can be sent to Congressional review in January and implemented after it clears that hurdle. If Congress wanted to prevent D.C. from spending money to implement legalization, they should have used the word “implement.”

This could result in a legal change, but if both the D.C. Council and Obama administration endorse this interpretation, it is unlikely to be overturned.

The first option would allow the initiative to go forward, legalizing limited possession and home cultivation, but still preventing the D.C. Council from adopting a bill to tax and regulate recreational marijuana. There are also ways around that, though.

2) Obama can simply reschedule marijuana any time.

Notice the rider does not actually refer to marijuana. Instead it refers to “any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.

While marijuana is currently listed as Schedule I, this scheduling is completely inappropriate and can be corrected any time by the Obama administration on its own. The Controlled Substance Act explicitly gives the Attorney General the power and responsibility to reschedule any drug based on the latest science. Even though the Obama administration frequently reschedules drugs without Congressional input, Eric Holder has so far refused to reschedule marijuana for purely political reasons.

If the Obama administration uses its power to move marijuana to Schedule II or III, this legal impediment on D.C. taxing and regulating marijuana would theoretically be removed. Potentially, there might still be a legal fight over whether raw marijuana would count as a tetrahydrocannabinols derivative, but one can argue that legal term is meant to apply only to newly-discovered and potentially dangerous synthetic tetrahydrocannabinols derivatives, which are often being sold as “incense.” Once again, if both the D.C. Council and the Obama administration share support for this interpretation of the law, any legal challenge is unlikely to succeed.

It is time for Obama to put his money where his mouth is. Obama has often publicly claimed to care about the principles like democracy, minority voting rights, and D.C. Statehood, but he has failed to fight for them when it matters. Now he faces a clear and simple test to prove if his word means anything. If he actually believes in the importance of voting rights and the “principle of District home rule,” he should use his power to make it happen.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

There is No Preparing for Health Care Calvinball

There is a chance that the Supreme Court could use the King v. Burwell case to rule that the Affordable Care Act tax credits can only be provided on the “state-based” exchange. This would leave the people in the 34 states which chose to use the federally run exchange in a precarious situation, but at this point I believe it makes no sense for state government to try to prepare for this eventuality.

The simple fact is the case is crap. The Congressional record and official Congressional Budget Office reports make it clear almost everyone involved in the working on the law intended for tax credits to be open to everyone. Many sections of the law simply won’t make logical sense if that wasn’t the case. Even if you think the poorly written language in the bill is ambiguous, past precedent would require giving deference to the executive branch in deciding what ambiguous language means.

If the Supreme Court rules against Healthcare.gov providing tax credits they will be playing Calvinball. They will be acting as an unelected and unaccountable third legislative branch and not as a Constitutional court. There is no preparing for Calvinball.

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The Study Health Care Reform Desperately Needs

Now that millions of people have used coverage bought on the Affordable Care Act exchanges for a year, it is time for a comprehensive study that questions the entire basis of the law.

In concept, the design of the study I want would be fairly simple: Step 1) Get a representative sample of healthcare.gov users willing to share the health care information for the past year. Step 2) Look at each individual’s actual out-of-pocket spending over the last year to see if, and by how much, they would have been better off had they selected a different plan on the exchange. Obviously, you are going to want to adjust this data to take into account things like individuals’ probability of a major illness/accident.

Sadly, I lack the resources or ability to conduct this study, but I strongly encourage the federal government, state government, non-profits, and Universities to pursue it.

The results from such a study should be fundamental to determining how we move forward. The entire health care law was based on the premise that regular people can do an effective job of shopping around for extremely complex insurance products on their own. There is strong evidence, though, that isn’t true. (more…)