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Comment by nlh | Hacker News Reader

Why is there still such resistance at the highest levels to legalization / decriminalization?

Obama and Holder have made it pretty clear (at least personally) that they don't see marijuana as a risk, and yet when the discussion about removing it from Schedule 1 status comes around, the answer seems to be "no".

Why is this? Obviously politics, but I'm curious where the big resistance is coming from. What would happen if Obama just said "You know what, we're taking it off Schedule 1 status. Done." Who would fight back and why?

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There are enormous vested interest in marijuana being illegal.

The biggest may be that most local police departments are funded largely by the seizure of assets from minor drug offenders and innocents who they can get away with accusing of drugs.

Other vested interests are the large number of government employees and private companies who benefit from the drug war, from drug detection to prisons.

There are also political issues. Marijuana legalization is opposed by many swing voters, and neither party can afford to lose those. Leaving matters up to states allows states where the majority favors continued criminal prosecution of marijuana offenses to do as they wish. This is actually the way it should be constitutionally.

I'm actually not sure how the federal government has the constitutional authority to enforce drug laws against the wishes of a state. If anyone can point me to a precedent, that would be helpful. The federal government has no authority to enforce laws against most crimes that occur entirely within a state's borders unless they violate international treaties.

EDIT: It appears the authority was challenged and affirmed in Gonzales v Raich case, though I think the opinion is in error as it grants the federal government complete authority to regulate local activity, an opinion which the Constitution was written to prevent. Congress is limited to the power "to regulate Commerce with foreign Nations, and among the several States".

http://en.wikipedia.org/wiki/Gonzales_v._Raich

> unless they violate international treaties

Which they in fact do - there are multiple international treaties on drug crimes and enforcement.

Feel free to enumerate any that would require the federal government to enforce marijuana laws. If there were any, I would have expected them to be mentioned in Gonzales v Raich, but none were.

I know of the "Single Convention on Narcotic Drugs" and the "United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances", but I am no lawyer so I can't say whether these treaties have a legally binding effect which prevents more relaxed dealing with drugs.

For the lazy: http://en.wikipedia.org/wiki/Single_Convention_on_Narcotic_D...

Like the US really cares about international drug treaties.

The reason that drug policy around the world is similar to drug policy in the US is specifically because the US has forced its approach on the rest of the world, not the other way around. Notice how many of the international anti-drug operations are carried out by the DEA.

If the US suddenly decided overnight that it wanted to do things its own way, I have a hard time believing they'd face any real international resistance.

The four Democratic justices in Raich are part of a block that has supported total federal jurisdiction over every aspect of American life since Wickard v. Filburn in 1942 [0]. The essential theory is that state governments are a barbarous relic of the founding and should be dissolved in fact, even if they still cannot yet be in theory. Even when Democratic Party opinion favors a state, the Democratic justices will always rule in favor of federal power, even in cases where the Constitution explicitly favors state power.

The Republican justices avow a preference for textual interpretation and division between state and federal power. Justice Thomas actually appears to believe that, based on his support for Raich. Justice Rhenquist was dying from cancer and considering that he might want some medical marijuana himself and Justice O'Connor's husband was in a similar situation; they both voted with Thomas. Scalia and Kennedy are right wing culture warriors who hate the "dirty f* cking hippies" and don't care much for textual interpretation unless it's convenient to their agenda; they voted with their culture war preference.

The decision was 6-3 against America. Today America would lose 8-1.

[0] http://en.wikipedia.org/wiki/Wickard_v._Filburn

* man fsck for details

Given that there were only two Democratic appointees on the Supreme Court at the time of this case, and four Republican appointees voted in the majority - including Scalia, this his hardly the work of "Democratic justices."

Majority: Stevens - Republican (Ford) Souter - Republican (Bush) Ginsberg - Democrat (Clinton) Breyer - Democrat (Clinton) Kennedy - Republican (Reagan) Scalia - Republican (Reagan)

And the dissenters: O'Conner - Republican (Reagan) Rehnquist - Republican (Nixon) Thomas - Republican (Bush)

Thanks for your comment about partisan appointments.

Even though there were seven Republican appointees at the time and two Democratic, the court was widely seen as having five Republicans and four Democrats. Mostly this was based on long experience watching the justices on both sides vote their partisan preferences on issues instead of the law and the constitution. The same court had served for a decade together by the time of Raich, so we knew a lot about them.

The classic example is Bush v. Gore where the court openly admitted that they were voting for a president instead of applying the law. The decision specifically disclaimed any precedential authority because it wasn't an application of law. Five Republicans voted for Bush and four Democrats for Gore.

Another classic example is Justice O'Connor's public statement that she would retire voluntarily only when a Republican could choose her replacement. Justices Souter and Stevens, in spite of being Republican appointments, waited just long enough to ensure Obama would choose their replacements.

Stevens held the same opinions for thirty-five years while partisan politics moved around him to make him a Democrat. Souter was specifically chosen by Bush as a cross-party appointment out of fear that the court would overturn Roe v. Wade with another Republican and destroy Bush's chances of reelection.

> The classic example is Bush v. Gore where the court openly admitted that they were voting for a president instead of applying the law.

Well, except that they never said that.

You do realize that ideology is not cleanly divided between two political parties, and that neither party has a consistent ideology over time or at any given time? The two parties are simply political coalitions that evolve over time, and neither is right or wrong about anything. When a party can no longer provide an adequate political opposition with it's current positions, it will change it's positions to replace a dwindling ideological group with a growing one. Aligning yourself with a political party, or a political party with righteousness is ignorant factionalism.

That is further true with Supreme Court justices, who have no reason to have any party affiliation, generally have none, and are far more nuanced, consistent, and reasonable than any political party. Yes, some lean more conservative than others on certain issues - as can be expected.

It's sad to see the sort of Fox News / MSNBC style partisanship you represent on Hacker News, where what you disagree with is called "Democratic" and what you agree with is called "Republican."

"You do realize that ideology is not cleanly divided between two political parties, and that neither party has a consistent ideology over time or at any given time?"

Yes, I do.

"neither is right or wrong about anything."

Actually, it's quite common for both to be right (robbery should be a crime), for either one to be right and the other wrong (starting a war with Iran would be bad no matter what Republicans think; trade protectionism is not good for our economy no matter what Democrats think), and for both to be wrong (infinite copyright is not good for creativity).

"That is further true with Supreme Court justices, who have no reason to have any party affiliation, generally have none, and are far more nuanced, consistent, and reasonable than any political party."

That is what I'd like to see, but recent history proves the exact opposite. Supreme Court justices align themselves with a party and pretty much follow it slavishly even contrary to their own declared ideology and rational conclusions. Maybe Justice Thomas is less partisan than most, but they're all far more partisan than ideological or rational.

That's why I explicitly said Republican and Democrat and not left and right or conservative and reactionary.

Lucky for us, most cases are still technical and detail rich rather than battles over federalism, abortion, and other hot button partisan issues. Our only remaining shred of non-partisanship on the court is that many issues don't yet have a partisan aspect.

"It's sad to see the sort of Fox News / MSNBC style partisanship you represent on Hacker News, where what you disagree with is called "Democratic" and what you agree with is called "Republican.""

It's the only realistic view of the present court and its appointment process, no matter how sad it is for the country.

Also, what I disagree with is seldom called 'Democratic'; I'm a registered Democrat. It just so happens that partisan Republican motivated reasoning was better and more valid on the single case under discussion. Since I'm not trying to get appointed to the Supreme Court, I can afford to admit that.

Small quibble: Democrats and independents (swing voters) support marijuana legalization at similar rates, according to General Social Survey data (which ends at 2012, but is otherwise pretty consistent on this finding).

That said, it could certainly be the case that there's a perception of swing voters opposing marijuana legalization (or perhaps those who oppose it are more vociferous than those who support it or something).

Source: http://blog.statwing.com/every-party-age-region-and-religion...

Why is there still such resistance at the highest levels to legalization / decriminalization?

Government is filled with a bunch of squares. DOJ and DEA doubly or triply so.

Did you ever know anybody in school who not only never smoked pot or drank, but thought people who did were human failures? They went on to become professional squares, the US government employs thousands of them, and they've got the power of law enforcement and judicial precedent supporting the careers they've spent their lives building. They also populate the staffs, advisors, and campaign workers of Congresspeople who do smoke and drink.

As much as you think legal weed is a slam dunk derp, there are huge swaths of the country who through religion, politics, bad experiences and/or general upbringing who think it's just as simply a terrible idea.

There are a lot of people who will vote for some regulation, and in Retardistan, D.C. that turns into total regulation to maximize the number of votes.

You know, like "health care seems kind of screwed up" turned into "put an excise tax on doing nothing" and "hire a contractor already famous for spectacular failure".

Or like "establish safety standards for children's poducts" turned in to "you cannot resell a children's produce without burning it and blessing the ash".

The American people get the government they deserve, and they get it good and hard.

Dude what are you talking about? Honestly, are you trolling?

http://www.washingtonpost.com/local/dc-politics/in-major-shi...

Turns out that old white dudes - which I think would most clearly fit your label of "squares" (please) - are actually not the ones who strongly oppose legalization. True, this is just DC proper and not Virginia/Maryland, but given that Maryland has had votes to decriminalize it and such I don't think it's absurd to apply some general lessons from this to other parts of the area. Really, the only people who reliably oppose legalization seem to be older black women and republicans - which is kinda funny if you ask me.

No, not "old white dudes." The Wikipedia page is decent on the topic:

http://en.wikipedia.org/wiki/Square_%28slang%29

Also, when analyzing the forces resistant to legalization you should account for the allegiances and power dynamics, particularly as applies to the information channels that communicate crime and other social costs upward to the actual policymakers. You're painting a caricature of a flattened hierarchy of federal policy and politics that simply doesn't exist.

Obviously the DEA doesn't support legalization.

But I think that the DOJ has established that they're going to legitimately and honestly let the experiments in Colorado and Washington play out by themselves. Despite what they've done in the past and what they've done in other areas, I think they deserve credit for that at least.

At the end of the day, the people who work at these places are real human beings just like you and me. I think your caricature of these organizations is silly and slightly (and only slightly) offensive or off-putting.

What we're seeing now is that public opinion has changed and official policies are quickly changing to match - for as many problems as US democracy has faced lately, I think this is a pretty good example of it working. Simply put, I don't think it's fair to say that people in DC are trying to keep pot illegal or keep people down more than anyone else in this country.

It's a lot easier to get a law passed then to get it revoked, because revoking a law would suggest admitting some sort of mistake, and that's pretty much a political impossibility. So once a law gets into place it's damn near impossible to get rid of it.

I think a large part of the reason pot is still mostly illegal is because no politician wants to be the guy to say "wow what a massive fuckup we've made".

For a good example of this phenomena see alcohol prohibition in the USA

Passed an amendment to make it illegal

Then passed an amendment to make it legal

Instead of revoking/cancelling/etc to the first one

The only way to "revoke/cancel" (repeal) an amendment is to issue a new amendment repealing a previous amendment, which is precisely what the 21st Amendment does.

Think of it like git version history: even a revert is actually a new commit.

This is a case where mixing up then and than makes a difference

The DEA has also prohibited any armoured car cash pick up service, making these dispensaries wide open to robbery http://m.laweekly.com/los-angeles/blogs/Post?basename=mariju...

Meanwhile WA police lamenting the loss of all that stolen prohibition money they used to enjoy http://online.wsj.com/news/article_email/SB10001424052702304...

Which is ironic, as that could be resolved with a simple Executive Order.

Drugs are still a huge taboo in our society and widely misunderstood, and maligned. The government can't just back down that quickly from a propaganda campaign they've been waging for decades.

According to polls, the battle lines aren't drawn by party affiliation. It's mainly by age. They're mainly a taboo for voters older than 40.

Sure, and it is changing rapidly, thankfully. Marijuana is much less of a taboo, but other drugs are, there's still a lot of misinformation out there.

> Drugs are still a huge taboo in our society and widely misunderstood, and maligned.

I don't think this broad characterization is correct: Alcohol and Nicotine are drugs, but widely used and accepted in our society. Certain forms of medication could easily be added to the list. It's just that certain drugs are not accepted in our society, despite all scientific evidence that they are at least not more dangerous than alcohol and tobacco.

In my experience with talking to people with poorly thought out positions against drugs, mentioning alcohol or caffeine will usually get you a "what do they have to do with anything, we're talking about 'real' drugs."

It's not rational or informed, but lots of people are still thinking that way.

My mother falls into the rarer "ending prohibition was a mistake" camp.

I know I'm showing my age here, but back in the old days the legislative branch was the one that made laws and the executive branch was supposed to enforce them. Obama and Holder can't legally take marijuana off schedule 1 because it's specifically listed as a schedule 1 drug in federal law.

Not that that would actually stop Obama or Holder, mind you.

If that were to happen, Congress could immediately reschedule it as Schedule 1. They've done this before with GHB when they disagreed with the existing schedule.

They could do that. And Obama could pardon every offender currently in jail and every offender that goes to jail until he leaves office. I wonder why he doesn't.

It's one thing to implement common sense progressive marijuana legislation, and probably quite another to make headlines as "the marijuana president" for possibly months in a row.

Because he cares more about party politics.

He is not going to be re-elected of course, but his party still needs to win elections and he won't do anything that he thinks will jeopardize that.

Congress doesn't determine the Schedule, the DEA and FDA do:

http://en.wikipedia.org/wiki/Controlled_Substances_Act

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