"Supremacy" What?

So last week, I mentioned that if WA starts selling Mary Jane out of the State liquor stores, it's likely to get smacked with a suit under the Supremacy Clause (Article VI, Paragraph 2 of the Constitution of the United States of America). A little explanation might be in order here.

The Supremacy Clause is the bit of the Constitution whereby We the People declare federal law to be superior to state law. That is, where state law and federal law conflict, federal law wins. This is why, for example, Washington State can't declare its citizens exempt from the federal income tax.

Now, marijuana, whether or not WA legalizes it, will be illegal under federal law for the foreseeable future (read: "until Congress pulls its head out of the prohibitionist sand"). That, however, does not automatically mean that each state has to use its own laws and expend its own resources to enforce that illegality. The states are free to stand back and let the federal agencies handle federal law.

California cannot stand in the way when the DEA is arresting medical marijuana providers. However, it does not (under current law) have to help the DEA. You follow? This is why, if selling pot became legal in CA, the federal government would be on shaky ground in suing to try to make CA keep marijuana illegal: CA would effectively just be withdrawing its support from the "War on Drugs," where MJ is concerned, not engaging in any action that would bring it into conflict with federal law.

WA selling MJ out of its state-run liquor stores? That's another matter. That would have WA employees, and thus the state itself, in direct violation of federal law, and where state and federal laws conflict, the federal law wins.

You can't put a state in jail, but you (or, rather, the federal government) can sue it in federal court to get an injunction-- basically having a judge tell WA, "No, you're not allowed to do this." WA can appeal, but the appeal isn't likely to be very successful. On this score, the Supremacy Clause is pretty clear.

What happens if WA goes ahead and tries it anyway? Well, that's where you start getting terms like "crisis" popping up in the papers, and the president maybe sending in the national guard.

Interesting Times in Washington State

There's one major caveat, of course, to the efforts to legalize marijuana in WA: regardless of what happens here, marijuana remains a federal schedule I drug. As far as the feds are concerned, marijuana has no medical use and is just plain flat-out illegal, no matter who's selling it.

So, if Washington State actually does pass a bill legalizing marijuana-- and, what's more, regulating and selling it through state liquor stores-- what happens?

If pot was just legal in WA, this would be pretty simple: local law enforcement ignores (or is supposed to ignore) the drug trade, while the DEA still has the authority to enforce the federal law. How much federal agents would actually do would depend on several factors: the DEA has a limited budget and only so many agents, and would likely only go after major operators.

... Not that this would be much of a shield for any smaller ones swept up in the process.

This already happens vis-a-vis medical marijuana; the state allows the defense, the federals don't, and the question boils down to which system you're in.

What makes this fun is that the State of Washington is actually considering selling the stuff itself through state-owned liquor outlets. This looks on its face like it threatens to make the state itself a drug trafficker.

Could state liquor store employees be hauled off to the federal pen by the DEA? Would the agency or agencies responsible for regulating the trade be prosecuted for drug conspiracy? Could Christine Gregoire, if she signs the bill, be hauled in as a ... a drug kingpin?

It seems absurd, but if there's a reason they couldn't (aside from the sheer public spectacle and probable outrage), I can't think of it. It may be that the state is ultimately shielded only by the practicalities of the situation. The simplest approach would probably be for the federal government to sue to prevent the state from putting any marijuana-distribution system into place.

And then there's the Obama aspect: as chief executive, he has a great deal of influence over what the DEA and Justice Department do, or don't do.

History is a messy business, it seems.

The Violent, Drug-Addled Brown People Are Coming!

1986 really has to rank as a low point in American drug policy. Swept up in a wave of terror of a drug claimed (inaccurately) to produce instant addiction in first-time users and to lead to violent behavior, Congress passed sentencing "guidelines" mandating especially stiff sentences for possession of crack cocaine.

It seems on a cursory glance that the main real differences between powdered cocaine and crack are:

1) users sniff powder, but smoke crack;

2) powder's effects last longer;

3) more affluent users sniff. Poor people smoke. Take a wild guess what this means for racial demographics in this country.

The result has been over two decades of grimace-inducingly sharp racial sentencing disparities.

Recently, the federal government has (finally!) twigged on to the problem here, and has been thinking about correcting it-- maybe just a little, maybe entirely. So far, though, it doesn't look like anything has come of this-- and please note that the linked bit of news dates to 2007.

Happily, Washington State doesn't seem to make any distinction. Crack possession is seemingly charged as, "Possession of a controlled substance (cocaine)."

Mind you, that's still a class C felony, but it's one more topic we're a bit ahead of the federal government on.