Let's make Obama regret his war on weed

The president's Justice Department won't let Washington and Colorado smoke up in peace. Can we change his mind?

Published December 10, 2012 12:45PM (EST)

  (Reuters/Mark Leffingwell)
(Reuters/Mark Leffingwell)

Barack Obama has pissed off the stoners again. He always does. In 2009 a question about marijuana legalization made him laugh, a hard to miss sign that he didn't take the issue seriously. Worse than laughter has been his DEA, and its increasingly heavy-handed war on legal marijuana dispensaries. Now that recreational marijuana has been legalized in Colorado and Washington, his Department of Justice is weighing its options, and, reportedly, none of their options seem to be "just let people smoke their marijuana, because it's harmless."

Instead the feds are either looking to have a judge declare the state regulations invalid, or are out to browbeat states into recriminalizing the demon weed by withholding federal money. (A similar strategy got the drinking age raised to 21 in every state, though it required legislation.)

Andrew Sullivan is not thrilled. There is some talk of "giving them hell."

Libertarians have been mocking the liberal Obama supporters dumb enough to think the president secretly supported legalization, but most of the liberals I know have always been aware that the president's been awful on drug war issues. We just hoped he'd be persuadable, or susceptible to pressure.

In June, I urged Obama to come out in favor of ending marijuana prohibition, as he belatedly came around on gay marriage. I still think that if he did, it would aid the cause of legalization, and justice, immensely. I imagine Obama doesn't think the drug war is winnable, because he's not a stupid man. But that's just what I imagine, and it's his actions that matter. His actions have so far been quite annoying. The president says his administration made a decision not to arrest or prosecute users, but decided to crack down on "traffickers" -- the ones who grow and sell the legal-in-the-state-but-not-in-the-country weed. That's not a great argument -- it's not terribly fair to arrest people growing and selling domestic pot while not arresting people smoking pot sourced from violent Mexican cartels -- but it's an argument that's pretty Obamaesque.

Arguably Obama is being entirely consistent with his liberalism in being such a dick about marijuana, because federal law does trump state law, and Tenth Amendment arguments to the contrary are usually wielded by extremist right-wingers. The arguments people use to claim that the feds shouldn't act to block Colorado from licensing and taxing marijuana frequently resemble ones Tenthers use to say they should be able to opt out of Medicaid and the Clean Air Act.

I happen to support both the Clean Air Act and the legalization of marijuana, so I'd prefer that the Obama administration not enforce federal law in this instance. And Jacob Sullum points out that the Justice Department has never once tried to have medical marijuana laws overturned with preemption arguments, possibly because a state legalizing the possession and sale of a substance under state law doesn't affect, and therefore contradict, the substance's status under federal law. (I have a feeling, though, that there are a lot of courts and judges who'd happily buy the federal government's anti-drug case, no matter how poorly argued, in the event the Department of Justice ever decided to attempt a preemption-based suit.)

Here's what I know: The DEA is full of people who went to go work for the DEA, and the Justice Department is full of prosecutors. Professional drug warriors, shockingly, are drug warriors. The Pentagon, similarly, is staffed with a lot of people who like dropping bombs and firing missiles, and every postwar president has ended up doing quite a bit of both once in office, no matter what they said they'd do before they were elected. The American state's brutal machinery of death and prosecution is difficult to slow or stop. But the Obama administration presided over the most deportations of undocumented immigrants ever, then said they'd stop deporting people eligible for the Dream Act. It's not hard to imagine something similar happening with marijuana, but there we go imagining again.

As Sullivan says, we should be giving them hell. We should be bitching constantly and loudly. Unfortunately, a second-term president is far less dependent on his "base" than a candidate or a first-term president. He is responsive to Congress, and Congress is not really full of legalization advocates. But it should be, and filling it full of legalization advocates ought to be a goal. It's silly to depend on presidents, especially when prohibition is based not on executive orders but on federal law.

If Obama is not persuadable, it should be every liberal's job to ensure that the issue becomes a litmus test for the next candidate, and the one after that, as gay marriage has become. (We won't see another anti-same sex marriage Democratic presidential candidate in our lifetimes, I promise you.) We should be making sure that the next generation of Democratic leaders is less awful on drug issues, and that means agitating at the local and state level. The money people -- and money helped win legalization in Washington, just as money has funded so much of the marriage equality battle -- should be convinced that the legalization fight is a good and just use of their money.

Let's make his marijuana policy end up as Barack Obama's DOMA, the thing he'll most desperately wish he could take back.

By Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene

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