Wednesday, February 5, 2020

On Marijuana, Sanders Promises the Impossible, While Bloomberg Promises More of the Same

By Jacob Sullum - February 05, 2020 at 02:45PM

Michael Bloomberg, who as mayor of New York City presided over a dramatic surge in pot possession busts and last year called legalizing cannabis "perhaps the stupidest thing we've ever done," now says "putting people in jail for marijuana" is "really dumb." You might suspect that Bloomberg's turnaround on marijuana, like his sudden repudiation of the NYPD's "stop, question, and frisk" program after years of steadfastly defending it, has something to do with his entry into the race for the Democratic presidential nomination. But his new position is morally incoherent, since he continues to support prohibition even while saying marijuana use should not be treated as a crime.

While Bloomberg was visiting Denver on Saturday, a reporter for the local NBC station noted his condemnation of marijuana legalization and asked, "Are the people of Colorado stupid for legalizing it?" Bloomberg's response:

The first thing is we shouldn't put anyone in jail over it. Colorado has a right to do what they want to do. I would advise going slowly to any other state because it's not clear, doctors aren't sure whether or not it's doing damage. If a state wants to do it, and Colorado and Washington were the first two that did it, that's up to the state. What I really object to is putting people in jail for marijuana. That's really dumb.

As long as producing and distributing cannabis remain illegal, of course, the government will still be "putting people in jail for marijuana," which according to Bloomberg is "really dumb." If people should not be arrested for marijuana use, as Bloomberg now claims to believe, it is hard to see why people should be arrested merely for facilitating marijuana use.

Since three-quarters of Democrats support marijuana legalization, Bloomberg's continued opposition puts him at odds with the primary voters he is counting on to secure his nomination. Except for former Vice President Joe Biden, all of the other Democratic presidential contenders favor repealing marijuana prohibition, not just keeping consumers out of jail or tolerating state-level legalization.

At the other extreme in the Democratic field is Sen. Bernie Sanders (I-Vt.), who is now promising that "on my first day in office through executive order we will legalize marijuana in every state in this country." That idea is legally impossible for at least three reasons.

First, while the executive branch has the authority to reclassify marijuana without new legislation, the process is rather complicated, involving consultation between the attorney general and the Department of Health and Human Services (HHS). After the department evaluates the merits of moving a drug to a different schedule based on a list of specified criteria, it makes a recommendation to the attorney general, who decides whether to initiate a rulemaking process. All of this obviously could not be accomplished on the first day of a Sanders administration (or even within the first few months), especially since he would not even have had a chance to appoint a new attorney general or HHS secretary.

Second, while the Controlled Substances Act lets the attorney general move marijuana from Schedule I to a less restrictive category, the statute's incorporation of treaty requirements seems to preclude removing marijuana from the schedules altogether without amending the law.

Third, even if Sanders could magically overcome those obstacles on his first day in office, the effect would be to repeal the federal ban on marijuana, which would not "legalize marijuana in every state." States would still be free to retain their own laws criminalizing the production, distribution, and possession of marijuana.

But at least Sanders' heart is in the right place on this issue, while Bloomberg's position is a moral muddle.


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