DISPATCHES

FEDS PREPARE FOR CRACKDOWN ON CANNABIS INDUSTRY

US Atty. Gen. Jeff Sessions signaled he is preparing a federal crackdown on marijuana usage as he announced he is rescinding an Obama-era memo that let states experiment with legalization. Sessions rescinded the “Cole memo,” a document issued in August 2013 that directed federal prosecutors to focus on “enforcement priorities” — trafficking, drugged driving, sale to minors — in states that legalize. Mark Joseph Stern reported at Slate (1/4) the Cole memo provided a great deal of stability for the cannabis industry: So long as marijuana companies complied with state law, they could generally avoid federal prosecution.

Since then, states that legalize have strived to remain “Cole compliant” by strictly enforcing their own marijuana laws. This past summer, the governors of Colorado, Oregon and Washington sent Sessions reports on their states’ Cole compliance, providing detailed analyses explaining and defending their regulatory schemes. Sessions responded with threatening letters insisting, falsely, that these states were falling out of line with the Cole memo, Stern noted.

At the time, Sessions appeared poised to crack down on the cannabis industry by alleging that states had grown overly lenient in regulating marijuana within their borders. In his letter to the governors, Sessions wrote that the Justice Department “remains committed to enforcing” the federal ban on cannabis, a “dangerous drug.” He also noted that the Cole memo permits “investigation or prosecution” of the cannabis industry, even when it complies with Cole. These words seemed design to reframe the Cole memo as a flexible suggestion rather than a firm policy.

Sessions’ timing in rescinding the Cole memo was no coincidence, Stern noted. The AG almost certainly wished to send an ominous message to California, which began permitting recreational cannabis sales on Jan. 1. The state’s marijuana growers and distributors now have to contend with a precarious legal regime as they get legal recreation production and sale off the ground.

“More broadly, Sessions’ move will inject a huge amount of confusion and uncertainty into the nationwide cannabis industry—which generated $6.7 billion in revenue in 2016, and employs as many as 230,000 people.”

(That’s roughly three times more people than the US coal industry employs, Stern noted.)

Sessions’ authority to interfere may be limited by the appropriations bill making its way through Congress, which includes an amendment, sponsored by Reps. Dana Rohrbacher (R-CA) and Earl Blumenauer (D-OR) that prevents the Department of Justice and Drug Enforcement Administration from arresting or prosecuting patients, caregivers, and businesses that are acting in compliance with state medical marijuana laws. A similar rider has been in appropriations bills since 2014, and the spending plan also renews the Harris Amendment, which prevents the District of Columbia from regulating marijuana for adult use, the Marijuana Policy Project noted (12/16)

Federal law continues to list marijuana among Schedule 1 drugs that are considered to have no legitimate medical use, though studies have shown that medical marijuana, helps many patients ease pain and other medical conditions, and when they are deprived of medical cannabis they turn to opioids to ease their pain, putting them in greater risk of dependency or addiction in the so-called opioid epidemic.

Sessions’s attempts to link medical marijuana to the opioid crisis fly in the face of evidence from the National Institute on Drug Abuse that show places with access to medical marijuana experience fewer opioid overdoses than those without access. A RAND study also found that prescriptions of opioids and reported opioid abuse decline where state-legal marijuana dispensaries operate, Jonathan Blanks reported in Newsweek (9/8/17).

Despite its perceived association with the political left, medical marijuana is not just a blue-state issue, Blanks noted. Ten of the 29 states with legal medical marijuana—and 115 electoral votes—went for Donald Trump in the 2016 election.

The eight states that have legalized marijuana for recreational use may expect big prosecutions designed to scare off investors and landlords who rent space to distributors. Growers and distributors who made no effort to conceal their businesses under the state law allowed by the Cole memo are now sitting ducks, Stern noted. “Federal prosecutors can easily charge them with possession, distribution, even racketeering. Participants in the cannabis economy face decades in prison for doing their job. Prosecutors could also go after individual users who obtain their marijuana openly and lawfully, scaring customers back to the black market, which will undoubtedly prosper from Sessions’ move.”

Sen. Cory Gardner (R-CO) called out Sessions for going back on a private assurance he gave Gardner before his confirmation at the Justice Department. “I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation,” Gardner tweeted.

Colorado has collected over half a billion dollars in cannabis tax revenue since it legalized recreational use of the drug in 2012. The funds have become essential for lawmakers as they seek to patch holes in the state budget.

Nationwide, according to a 2017 CBS poll, 71% of Americans—including 63% of Republicans—oppose federal interference with state-legal marijuana.

A 2017 Quinnipiac poll found that 94% of American voters approve of adult medical marijuana use if prescribed by a doctor.

TRUMP WANTS TO WASTE MONEY ON BORDER PATROL AGENTS, TOO. Donald Trump not only is insisting on spending $18 billion to build walls along the length of the Southwestern border; he also wants to increase the number of Border Patrol agents. But Christine Stenglein and John Hudak of Brookings Institution noted in the Los Angeles Times (1/8) Customs and Border Protection last year awarded a $297 million contract for assistance in recruiting and hiring 5,000 border patrol agents Trump believes we need to combat “the recent surge of illegal immigration at the southern border with Mexico.”

“Those bold numbers may please the Make America Great Again crowd, but it will be exceedingly difficult to find qualified agents, or to deploy them effectively, since the border is actually quieter than ever,” Stenglein and Hudak wrote. “Under the Clinton administration, it took 27 applicants to yield one Border Patrol officer. And the hiring ratio has gotten worse. This spring, when Customs and Border Protection requested bids for private contractors to help fulfill Trump’s order, it wrote that it now takes 133 applicants to hire one full-time employee.”

Not only is it harder than ever to find qualified agents, it’s not clear why we need them in the first place, since border apprehensions went down substantially during the last year under President George W. Bush, as the Great Recession reduced job opportunities, and apprehensions continued dropping the first three years under President Obama. Apprehension numbers have stayed low ever since, even as the economy has expanded.

In 2017, the number of people apprehended at the border fell 26% compared with the previous year, and they haven’t been this low since the Nixon administration. The “recent surge of illegal immigration at the southern border with Mexico,” the basis for Trump’s border security push, reflects only a temporary rise in apprehensions from 2015 to 2016. It’s a blip in a long, downward trend, from more than 111,000 in 2004 to fewer than 30,000 last year.

Kevin Drum of MotherJones.com noted, “A decade ago, it took less than one-quarter of an agent to make an apprehension each month. Today it takes four times as many. And if Trump has his way, it will take five times as many.

“This doesn’t make much sense. Illegal immigration is down, and it seems to be down permanently. Why do we need five times more agents per apprehension than we did in 2008? Not only is it dangerous to hire this many new agents at once, possibly at the cost of lowering standards, but it seems like a waste of money too.”

TRUMP ADMINISTRATION PLAN TO BAIL OUT COAL & NUKE PLANTS REJECTED BY FED AGENCY. The Federal Energy Regulatory Commission (FERC) unanimously rejected Energy Secretary Rick Perry’s plan to raise consumer energy bills in order to subsidize coal and nuclear power plants (1/8) — a major blow to the Trump administration’s effort to slow the growth of solar and wind power.

In September, Perry asked FERC, which oversees the US power grid and regulates interstate electricity transmission, to adopt a new federal rule that would require Americans to buy more coal and nuclear power, a taxpayer bailout at the expense of cheaper renewable sources (and natural gas).

To make the case for his new rule, Perry had to fabricate an economic threat to US grid reliability from cheap renewables and then propose a rule to account for the supposedly undervalued reliability benefit of coal and nuclear power, Joe Romm noted at ThinkProgress (1/8). That meant Perry also had to ignore his own grid study, which had made clear renewables were not a threat to power reliability.

But FERC, by a 5-0 vote, didn’t buy that logic, Romm noted. The unanimous vote is especially notable since 3 of the 5 commissioners are Trump appointees, including the new chair.

The rule-making explains all of the measures FERC has been taking to maintain grid reliability — while also keeping electricity prices low through market competition. It directly rejects the notion that power prices needed to be tweaked to reward coal and nuclear, saying the Proposed Rule did not satisfy “the threshold statutory requirement of demonstrating” that the grid operators’ current pricing schemes “are unjust and unreasonable.”

EXPANSION OF OFFSHORE DRILLING FACES BIG OBSTACLES. Trump’s Interior Department announced that it would open up nearly the entire outer continental shelf for oil and gas drilling (1/4). That’s bad, Kevin Drum noted at MotherJones.com (1/6). But actually getting oil platforms up and running takes more than just an announcement. On the West Coast, for example, governors of California, Oregon, and Washington have announced they will do “whatever it takes” to stop it from happening.

Bettina Boxall and Tony Barboza of the Los Angeles Times noted (1/6), “There are myriad obstacles opponents can throw in front of the proposal, not to mention questions about whether the oil industry has much of an interest in California’s offshore reserves at a time when domestic oil production is at its highest level in decades.”

In California, the state coastal commission also has the authority to review activities in federal waters to ensure they are consistent with the state’s coastal management plans. While the US Secretary of Commerce could override a commission finding that new oil drilling violated the state’s management plan, federal courts have tended to side with states in such contests.

And California has another weapon: State Lands Commission jurisdiction over tidelands and waters that extend roughly three miles offshore. That gives the commission the ability to stop the construction of pipelines that are the most economical way of transporting oil and gas from offshore rigs to land. “In some ways that is an even more formidable tool that the state of California and like-minded local governments can utilize to deny approval of things like oil terminals and pipelines crossing state sovereign tidelands,” said Richard Frank, director of the California Environmental Law & Policy Center at UC Davis.

“Needless to say, the mere fact that building drilling platforms would touch off a legal war is something that will cause oil companies to think hard before they spend money on leases,” Drum noted.

He added, “There’s no question that it’s genuinely bizarre to have a presidency that seems to be literally driven by a desire for revenge on Barack Obama because he made fun of Donald Trump at a dinner a few years ago. In one sense that makes Trump more dangerous than a normal president, but the very fact of Trump’s derangement has also spawned a far more energized opposition movement than a normal presidency might have. That’s why Trump doesn’t have his wall. Or his immigration restrictions. Or the repeal of Obamacare. Or the end of financial regulations. On one side, he has a Democratic Party implacably opposed to everything he does, and on the other he has a rejuvenated liberal movement determined to tie him up in court forever. This doesn’t mean Trump will do no damage. He’ll do plenty. But in the end, I suspect it will be less than we fear. There’s a real limit to how far even an unhinged political party and a monomaniacal president can buck public opinion.”

TRUMP PROMISED TO ‘PROTECT AND FIGHT FOR’ AMERICAN WORKERS. HOW THAT WENT. Donald Trump campaigned on the lament that, under past presidents, “our workers’ loyalty was repaid with betrayal,” but that “It doesn’t have to be this way. We can turn it all around—and we can turn it around fast” and “Under a Trump presidency, the American worker will finally have a president who will protect them and fight for them.” 

About that, Laura Clawson noted at DailyKos that the National Employment Law Project has lined up some of Trump’s key actions on workers in 2017 and it should not surprise you to learn that his promises were lies:

• January: Anti-Worker Fast-Food CEO Nominated to Lead Labor Department.The U.S. Labor Department is charged with promoting the welfare of workers, improving working conditions, and increasing opportunities for workers to earn good wages. But the Trump administration nominated Andrew Puzder, a wealthy fast-food CEO with a documented history of labor violations, anti-worker philosophy, misogyny, and sexual harassment, to fill this important post. Puzder ultimately withdrew the night before his hearing.

• March: Drug Testing People Who Lose Their Jobs. Instead of helping people who’ve lost their jobs get back to work, congressional leadership and the Trump administration repealed a 2016 Labor Department rule, thereby making it easier for states to drug-test unemployment insurance claimants.

• April: Endangering Worker Safety and Health. Worker safety regulations do not kill jobs, they prevent jobs from killing workers. Yet the Occupational Safety and Health Administration under President Trump bowed to industry pressure and inexplicably delayed rules intended to protect workers from exposure to deadly silica dust. Moreover, in an unprecedented move, OSHA proposed in June to strip away critical protections for construction and shipyard workers against cancer-causing beryllium.

• June: A Pay Cut. The Trump Labor Department’s Wage and Hour Division pre-announced an effort to roll back the 2016 overtime rules that promised to give 4.2 million workers around the country a long-overdue raise or more time with their families.

• August: Invalidating Tools to Identify Gender and Race-Based Pay Gaps. In a move that undermines pay-practice transparency, which is the first step in eliminating gender- and race-based pay gaps, the White House in August halted an Equal Employment Opportunity Commission initiative to collect better data on what companies pay workers by race and gender.

• December: Taking Workers’ Tips. Many workers in service industries like restaurants depend on tips to get by. The Labor Department has now proposed rescinding a rule that ensured that tips belong to workers. This proposal would give employers the chance to redistribute and even steal a portion of tips. It’s a prime example of an attempt to redistribute money from working people to employers, including large corporations.

For more information see nelp.org.

WASH. DEMS PLAN AMBITIOUS NEW VOTING AGENDA. Last November, Democrats gained control of the Washington state Senate — and, with it, the entire state legislature and the governor’s mansion — when Democratic Sen. Manka Dhingra defeated her Republican opponent in a special election. On Jan. 5, Gov. Jay Inslee and a handful of his fellow Democrats announced the voting rights agenda they hope to push forward now that they control the state’s government.

Their proposals would prevent voter registration from being an obstacle to the franchise, add disclosure rules for election donors and reform municipal elections in the state to keep voters of color from being locked out of city government, Ian Milhiser noted at ThinkProgress (1/8).

The Democrats’ proposals combine automatic voter registration and same-day registration, along with a provision allowing 16 and 17-year-olds to pre-register as a voter before they become eligible to vote on their 18th birthday. Automatic registration is a relatively new reform — the first automatic registration bill became law in Oregon in 2015, and it led to record participation in the 2016 election. Since then, a bipartisan mix of nine states plus the District of Columbia enacted similar laws.

Additionally, Washington Democrats are rallying behind a bill pushed by Sen. Rebecca Saldaña (D), which targets city elections that tend to exclude candidates of color.

In 2014, a federal court ordered the city of Yakima, Wash., to abandon its system of electing all city council members on an at-large basis, and replace it with a system that divided the city up into multiple electoral districts. Although 41% of the city was Latino, Yakima had never elected a Latino candidate to the city council or the school board, because the city’s sizable Latino minority was outvoted. After the city moved to district-based elections, by contrast, it elected three Latina city council members in a single election.

Since then, at least two Washington cities have tried to follow suit, but were thwarted by a state law that makes it difficult to shift away from at-large elections.

The “Washington Voting Rights Act of 2018” would permit these cities to voluntarily change their electoral system, while also allowing private citizens to challenge local election systems that effectively exclude voters of color. This bill would encourage more municipalities to move either towards district-based elections, or towards variations on at-large elections that are less likely to disadvantage minority candidates.

The Washington Democrats’ proposals to increase access to the franchise are, in many ways, the mirror image of legislation enacted by Republican-led states that appears designed to restrict voting rights. Voter ID laws, which target young voters, low-income individuals, and voters of color — all of whom tend to favor Democrats over Republicans — thrived in red states after the Supreme Court allowed Indiana’s voter ID law to take effect in 2008.

North Carolina, meanwhile, enacted an omnibus voter suppression law that matched voter ID with a number of restrictions on voting methods often used by African Americans. Though this law was struck down by a federal appeals court, the Supreme Court split 4-4 on whether to reinstate the law for the 2016 election. Had Neil Gorsuch, who occupies the seat Senate Republicans held open for a year until Donald Trump could fill it, been around to cast the ninth vote, North Carolina’s law would almost certainly have taken effect in 2016, Milhiser noted.

Voter suppression efforts like this North Carolina law are likely to continue in Republican-controlled states. And, with Gorsuch now ensconced on the Supreme Court, the judiciary is unlikely to provide a meaningful safeguard against many laws attacking the franchise.

The best solution to bad voting laws, in other words, is likely to be good voting laws which repeal tactics such as voter ID and press forward with provisions such as automatic registration, Milhiser wrote.

CLIVEN BUNDY SET FREE DUE TO PROSECUTORIAL MISCONDUCT. Charles P. Pierce notes at that “The American criminal justice system can be a place of miracles and wonders, as The Arizona Republic illustrates, as Nevada rancher Cliven Bundy, his two sons and a militia member will not face a retrial on charges that they led an armed rebellion against federal agents in 2014.

A federal judge [1/8] said the federal prosecutors’ conduct was “outrageous” and “violated due process rights” of the defendants. US District Court Judge Gloria Navarro dismissed the charges against the four men “with prejudice,” meaning they cannot face trial again. She said a new trial would not be sufficient to address the problems in the case and would provide the prosecution with an unfair advantage going forward. The judge criticized both the prosecution and the FBI for not providing evidence to the defense as required under court rules. “The court finds that the universal sense of justice has been violated,” Navarro said. Navarro said it was clear the FBI was involved in the prosecution of the case, and that it was not a coincidence that most of the withheld evidence came from the FBI.

“So, if you’re going to defy lawful authority and gather some folks to draw down on federal officials, apparently, it helps to be old and white. It also helps when the prosecution botches the rules of evidence beyond all recall,” Pierce noted.

Navarro on Dec. 20 cited six pieces of evidence the Nevada US Attorney’s Office failed to disclose that was favorable to the defense and could have changed the outcome of the trial. The evidence included: records about surveillance at the Bundy ranch; maps about government surveillance; records about the presence of government snipers; FBI logs about activity at the ranch in the days leading up to the standoff; law-enforcement assessments dating to 2012 that found the Bundys posed no threat, [and]internal affairs reports about misconduct by Bureau of Land Management agents. “Failure to turn over such evidence violates due process,” Navarro said in December. “A fair trial at this point is impossible.”

“There’s no point in worrying what “message” this sends to the various sympathetic (and well-armed) extremist groups in the country,” Pierce added. “There’s also no point in any thought experiments about what would have happened if Bundy were a black teenager in Ferguson, Missouri, or a black child on a playground in Cleveland.

“The prosecution apparently let its loyalty to the FBI override its obligations to due process, and it got caught.” From the L.A. Times:

Despite the mistrial, federal prosecutors argued in a legal brief filed Dec. 29 that they didn’t willfully withhold evidence from the defense and they still planned to press ahead with another trial. Assistant US Atty. Steven Myhre wrote in his brief that the government shared 1.5 terabytes of information and noted it was “by far, the largest review and disclosure operation in this [US attorney’s office] history.” Myrhe also argued the government needed to protect some witnesses from leaks that might lead to threats, so it “culled the database with witness protection in mind.” “Unprecedented database volume and witness concerns aside, the government never let these obstacles stand in the way of diligently working to fulfill its discovery obligations,” he wrote. But defense lawyers for Payne — Renee Valadares, Brenda Weksler and Ryan Norwood — argued in their Dec. 29 briefing seeking to dismiss the case that government “failed to accept responsibility for any of its failure to disclose evidence” and the withholding of evidence was “flagrant prosecutorial misconduct.”

Pierce concluded: “There is one king irony to this whole thing: Cliven Bundy and his family and his spavined cattle are all free now because the system he was so hell-bent on defying actually works. I think the cattle will understand this before he does.”

From The Progressive Populist, Febuary 2, 2018

Populist.com