On Thursday, January 4th, Attorney General Jeff Sessions withdrew a Justice Department memo issued in 2013 by the Obama Department of Justice that told federal prosecutors to focus on prosecuting marijuana dealers who sold to children, committed violence, and did their business in states that had not legalized marijuana, rather than those states that had legalized the drug. Paul Larkin of the Heritage Foundation and Ilya Shapiro of CATO joins Moderator Marc Levin to discuss the withdrawal. 


Paul J. Larkin Jr., Senior Legal Research Fellow, The Meese Center for Legal and Judicial Studies, The Heritage Foundation 

Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute.

Moderator: Marc A. Levin, Vice President, Criminal Justice Policy, and Policy Director, Right on Crime, Texas Public Policy Foundation.

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Event Transcript

Dean Reuter:                     Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's criminal law and procedure and federalism and separation of powers practice groups, was recording on Wednesday, January 10, 2018, during a live Teleforum conference call, held exclusively for Federalist Society members.

                                                Welcome to the practice group's Teleforum conference call, as today, we discuss the enforcement of the federal drug laws. I'm Dean Reuter, vice president, general council and director of practice groups, here at The Federalist Society. Please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast in the future and will likely be transcribed. Uh, we're very pleased to welcome three experts today. I'm going to introduce just one of them, who's going to act as the moderator and conduct a bit of an interview, uh, but as always, we'll be looking to the audience for questions, so please have those in mind for when we get to that portion of the program.

                                                Our interviewer today is Marc A. Levin. He is the vice president of criminal justice policy and the policy director for Right on Crime at the Texas Public Policy Foundation. He's going to introduce our other two experts and get us started. With that, Marc Levin, the floor is yours.

Marc Levin:                         Well, thank you. Uh, I'm thrilled that we were able to put this together on such short notice given the timeliness of this issue, of the, uh, memo regarding marijuana policy enforcement from the Obama Administration, that was withdrawed last week by Attorney General Jeff Sessions. So, uh, I'm very please to have two friends and two brilliant legal minds, uh, who are dif- ... uh, both [inaudible 00:01:32], but have a little bit different, uh, orientation on this topic. Um, first of all, we have Paul Larkin, who held, who's held numerous positions, including at the US Department of Justice for nine years, as an assistant to the solicitor general and attorney in the criminal justice division there. He also served as chief council to Orrin Hatch on the Senate Judiciary Committee.

                                                Um, and also, we have Ilya Shapiro, who's senior fellow in constitutional studies at the Cato Institute. And I might have forgotten to mention that Paul is currently at the Heritage Foundation, um, where he helps run their, uh, program on criminal justice, but Ilya's over at the Cato Institute. Before that, he was, uh, the adviser to Multi-National Force in Iraq on rule-of-law issues and practiced at Patton Boggs and Cleary Gottlieb. He's authored numerous books and articles that are too, uh, voluminous to go into, as has Paul.

                                                So, uh, without further ado, I wanted to kind of tee this up by saying that, that one of the reasons I found it so important that we have this call is to kind of unpack the layers of issues that this action raised. Um, and that has to do with kind of at the most basic level, whether the appropriate way to handle this was, uh, as was the case previously, for the attorney general to essentially say, "Except for a very, set, narrow set of cases, we're not gonna prosecute marijuana, uh, matters in states where it's legal," um, or is it better to leave it to the US attorneys in each state, uh, as is now is the, uh, circumstance, to make those decisions, um, to exercise that discretion within current federal law, which we all acknowledge marijuana remains illegal and on the schedule of the most dangerous drugs.

                                                Um, then secondly, whether or not, uh, given this change, should cases actually be brought or, or, or not. Um, thirdly, should Congress change the law to resolve this issue. And then, uh, you know, another interesting question might be whether, um, the, uh, we might all agree that the Commerce Clause has been overextended by the Supreme Court, uh, in terms of what, uh, it actually means to be involved in inner state commerce, and if the attorney general has a more restrained view, should he have followed that rather than pushing the limits of what the Supreme Court has perhaps, uh, wrongly construed the Commerce Clause to allow. So, these, so many interesting questions that are raised here.

                                                So, without further ado, I'd like to turn it over for opening statements to first of all to Paul Larkin, and, uh, we'll begin delving into these questions. Paul?

Paul Larkin:                         Well, listen, thank you very much for the opportunity to participate, particularly with someone of Ilya's candle power. I really appreciate it and hope to learn from what he has to say on this issue. Let me start out by saying I think the attorney general, Jeff Sessions, did the, the United States a solid last week by deciding he was going to rescind the Guidance Memorandum that had been adopted during the Obama Administration. Why? It now effectively forces Congress to debate how to treat marijuana.

                                                Ca-California decided in 1996 that it was going to go against federal law and authorize marijuana to be used for medical purposes, even though federal law allowed no such exemption. In fact, the Supreme Court in a later case, rejected the idea that there was any such exemption by rejecting the idea that there was a necessity defense and a statute, you know, that would allow someone to use marijuana if it was the only reasonable means of dealing with an affliction. But since 1996, the administrations of Bill Clinton, George Bush Junior, and Barack Obama didn't do anything about this, other than just essentially stand down and let the states deal with it. The problem with that is, as a legal matter, ever since the Pure Food and Drug Act of 1908, America has essentially decided that the question of what, if any, drug should be set at interstate commerce is a question that should at least be her, uh, the subject of considered debate by experts, and just, and, ever since 1938, it'd be the Food and Drug Administration.

                                                We don't allow antiviral drugs. We don't allow antibiotics. We don't allow all sorts of pharmaceuticals to be sent into interstate commerce based on a plebiscite. We've decided that we need to justify the permission to do so, and the, uh, justification has to come in approval by the Food and Drug Administration. That, for more than a century, actually a century and a decade, has essentially been a, uh, American policy, and it's served us well. Remember, there're a lot of substances that one time were thought of, at least if not being beneficial, of being anodyne, that we now know are not. Asbestos was a wonderful example of a fire retardant material that we now know that we wish we could disinvent. The same thing with PCBs and lead. So what we need to do is make sure that we are debating the issue in the same form that we had for 100 years plus, which is wait to see what the Food and Drug Administration and all the experts have to say. Jeff Sessions, by forcing the, this issue, has now, uh, forced Congress, essentially, to address that.

                                                Secondly, as a policy matter, and on the merits, uh, this debate will allow all of the new evidence that has come in over the last decade or so, uh, to be fully explored and discussed. When most people hear the term "marijuana," they think of Jeff Spicoli, not Jeff Sessions. Well, it is, marijuana, over the last decade, has been shown to be more dangerous than what you saw in those movies. There's no good reason why we shouldn't take into account all of the new scientific and medical developments that have occurred ever since 1996. We shouldn't make the mistake of thinking that the ganja that we now have is the same as your granddaddy's dope. The result is to otherwise leave us in the position where the new science that we've come across is not going to influence our decision, and that's always a mistake. We're talking about something that's a matter of biochemistry. If there is new evidence in that field, that indicates it dangerous, we ought to know.

                                                And if at the end of the day, Congress decides, not withstanding all of that evidence, it wants to treat marijuana differently, then it should do so by revising the federal controlled substances laws, to treat marijuana differently, rather than what they're doing now, which is essentially, uh, just they're sitting back and saying that the justice department can't bring criminal prosecutions in a way that would prevent the state from having a medical marijuana program. It's kind of odd to think that the Congress really wants to go about it that way, and it is certainly not the best way to go about making policy, but that's where we are now. So, bottom line, the attorney general deserves kudos for forcing the nation to address the issue.

Ilya Shapiro:                       Um, well, thanks for that. This is Ilya Shapiro. Uh, Jeff Spicoli, not Jeff Sessions, I'm gonna steal that, Paul. That was a, that was a great line. Uh, and probably the thing that I most agreed with, uh, with you in your presentation. Although, to be fair, uh, I do agree with your legal analysis. Uh, this is not a legal issue at all, a question of whether Sessions can lawfully, uh, rescind these memos, although, I suppose, given last night's, uh, DACA ruling, you might be able to find a judge, uh, to say that he, uh, he acted, uh, unlawfully, uh, somehow. I'll get to in a moment why marijuana policy and law is not like, uh, the, what's, what happened with DACA and DAPA. Um, so this is not, uh, you know, we have to, uh, uh, set for later.

                                                Even in this discussion, hopefully, we'll get to, uh, the issue of, of, you know, what Congress should do, of how to separate it from the issue of, that I think, uh, Raich versus Gonzales, the 2005 case, uh, that allowed the continued, uh, federal regulation of, uh, locally and personally grown and consumed marijuana. Um, you know, that's a, that's a side, uh, issue. Uh, the, the, I mean, for that matter, u-under existing law, under the Controlled Substance Act, you don't need an act of Congress to, uh, reschedule, uh, marijuana as a, uh, a class three drug, uh, like certain other drugs that we think of as being hard drugs. Uh, marijuana is, uh, class one, whereas, uh, most opioids, uh, are not. They're mostly class two or, or something else. Uh, or cocaine or certain other drugs. It's, uh, it's, uh, seems bizarre, and I think most American people would think it, think it bizarre that marijuana is, is, at least as far as the regulations are concerned, the, the, the, the schedule is concerned, are treated more harshly than, than these other drugs.

                                                Uh, so the executive could, and I actually argued that obama would be properly using his pen and phone if in the end, at the end of his, uh, administration, had, uh, had rescheduled, had directed his attorney general to, to reschedule marijuana. But that didn't happen, and again, that's a separate issue than what Jeff Sessions did in rescinding these memos, which, after all, were, uh, uh, a guidance, uh, and note that when the Cole memo or any others, because there are actually, I think, four memos that, um, uh, that Jeff Sessions, or five all together, that, that, that he rescinded, um, none of those went beyond executive power. This is unlike DACA and DAPA in the sense that the federal government didn't, under Obama, did not, uh, give a federal license or a temporary license, to use or grow or sell marijuana or anything like that, trying to have some sort of deferred action with marijuana, uh, make it some sort of, eh, somehow official.

                                                All it said was, uh, "We have certain federal priorities, uh, uh, and here's what they are," um, and, uh, recognizing the, the, the inherent federalism tension that was created by the decision or, or, or underlined, um, by the decision in Raich versus Gonzales, where you have Schrodinger's Weed, essentially, a, uh, a plant that, or drug, that's both legal and illegal, depending on which state you are in and what you're using it for. Uh, 29 states have now legalized for medicinal purposes, and eight, uh, plus D.C., for, um, recreational purposes, and actually, just as I was, uh, getting ready for this call, I got an email from the Marijuana Policy Project, and, and believe me, I didn't, uh, sign up, uh, for to be on their list, but anyhow, I am, I guess because I've, I've given comments in this area, uh, but just today, the Vermont Senate has passed a bill to approve, uh, legal marijuana, uh, that the house, the state house, had earlier passed, and the governor has indicated he intends to sign it.

                                                This, uh, would be the first state, uh, that has legalized marijuana, uh, through legislative action, rather than referendums, so that would be significant, and then Vermont would become, I guess, the, the ninth state to, to legalize for recreational purposes. But regardless, um, the Cole memo, uh, the, the kind of the, the key of the five that, that were rescinded, uh, I think reasonable resolved this federalism tension, uh, that, that in all of these states, local and state law enforcement were not going to be, uh, uh, creating the, the, the drug as illegal. Uh, and so the federal government was in a bind because 99% of marijuana arrests are generated by federal and local law enforcement. There simply aren't enough DA or ATF or, uh, other, you know, US Marshall, other officials, FBI, whoever is involved in this, uh, to police, uh, the, uh, federal illegality o-of marijuana, and so certain priorities have to be drawn, and the Cole memo, I think were pretty reasonable, uh, frankly, focusing on criminal enterprises, violence and firearms, access by minors, uh, impaired driving, diversion to other states, these kind of obvious federal concerns.

                                                And now, you know, it could be that Jeff Sessions determined that the, uh, uh, the, the Justice Department and related agencies weren't, uh, enforcing those priorities in a good enough way, or that states were not doing enough themselves to prevent diversion to other states, or something like that, and then, further, further federal action could come from that, but as it stands, the letter of the memo, the priorities, are should be pretty uncontroversial. It's kinda like, like saying that for a, a, a, a, m-municipal police force, that we will prioritize, uh, murder and rape over jaywalking and, uh, parking illegally, or what-have-you. Um, um, but anyway, now instead, with, with their, with the rescission of these memos, uh, the attorney general has created, well, chaos, basically. Uh, and not necessarily because all of a sudden there's gonna be more criminal prosecutions of, um, you know, recreational users on the corners or dorm rooms or hotel rooms of Boulder, Colorado or, uh, or Seattle, or, or, or what-have-you, or California, uh, but because the, the businesses all of a sudden are, are in more of a limbo.

                                                Uh, uh, a US attorney, even if he doesn't have, uh, the resources to, to send out a, a SWAT team, or a DEA team, or what-have-you, to shut down a dispensary, can certainly, uh, send a cease and desist letter, uh, and saying that you're in violation of federal law, and then that business will have to weigh the practicalities versus the legalities, I, I, I suppose. Uh, and this will make, uh, financial institutions, uh, further shy away from dealing with, um, what are a-activities that are legal under state law. And, I think that's probably Session's intent, to put a chill, uh, that way on these kinds of businesses, um, but it really, uh, makes the law more uncertain than what it was before, and I'm not sure why introducing an element of chaos, um, I mean, I'm, I'm sure it does put some pressure on some members of Congress, but, uh, the ends don't always, uh, justify, uh, the means.

                                                Uh, and so, you know, the memo's obviously not good news for the cannabis industry, or supporters, uh, of, uh, legalization, and some of these other memos might be even more significant than the one that was rescinded because enforcement priorities might not change. Uh, but for example, the 2009 Ogden memo about medical marijuana, uh, or a 2014 DOJ memo that talks about tribal lands or, uh, a 2014 Cole memo that dealt with banking services, if you withdraw these, uh, even though the documents didn't provide any guarantees, uh, for people trying to avoid trouble with the federal government, withdrawing them compounds the uncertainty, uh, about businesses that are, are deemed legitimate by most states, again, a majority in terms of medicinal marijuana, and yet qualify as criminal enterprises under federal law. Now, again, this, uh, these actions may well, and I hope they do, encourage Congress to resolve that conflict, um, in, in a way that doesn't depend on, uh, a fleeting, uh, nonbinding reversible, uh, uh, executive, uh, memoranda.

                                                Um, but, uh, a-again, I-I think th-this just kind of introduces a, uh, a monkey wrench, uh, into the whole system, that, um, uh, creates more disorder where we sort of, uh, did have some, some order, and an uneasy temporary resolution, or at least a, a stasis, uh, regarding this federalism tension, until, uh, Congress, uh, resolve the question, or as I said, the executive, uh, uh, uh, takes action to, to deschedule marijuana. And frankly, given, uh, the president's, uh, statements on the campaign trail and whatever, uh, noises he's made about, about this area, I'm surprising, I-I'm surprised that he let Sessions do this or, or went along with it, or if he didn't know about it or wasn't fully briefed, or, or didn't fully realize that he didn't, uh, you know, Tweet about this, he's attacked Sessions for, for much less, in, in, in my view, and much less deservedly, in my view, um, but, uh, but anyhow, um, that, that's where we stand.

Dean Reuter:                     Very good. Um, this is Dean Reuter. Marc, uh, uh, I don't know if you have a question or two you wanna ask, if your phone's muted?

Marc Levin:                         Yes, thank you. I do. Uh, and thanks for those excellent, uh, discussions. I wanted to, uh, first turn to, uh back to Paul and ask you, you know, I think all of us have been critics of overcriminalization, and one, um, a-aspect of that is that, um, if you have so many laws or laws are so broad, or laws that aren't normally enforced, uh, it, it allows, uh, whoever the prosecutor may be to single out one person to prosecute, um, whether it's for political or other reasons, um, while everyone else, uh, doesn't face prosecution.

                                                And so my question is do you have any concern that, um, that ... I mean, I think we would all acknowledge and there's some, already been some statements by some US attorneys that, uh, most if not all of them are unlikely to bring, um, m-many or any of these cases, but if there's someone who they're looking to get at for something else, that this might be something they have to, um, uh, if they could possibly connect them to marijuana in any way, that this could be used in kind of a vindictive way against somebody, even though it's not likely to be generally, uh, enforced?

Paul Larkin:                         You know, I'm not really troubled by that, uh, for several reasons. Start with the most obvious. If the attorney general wanted to create the type of disruption or persecution or discrimination you're talking about, he would've changed the policy not by issuing a one-page memo, but by seeking indictments, making seizures, or conducting arrests. He would've just sent a lot of people into facilities in Colorado, for example, and had everybody in the store arrested. But he didn't do that. And that, I think is something, uh, that nobody has noticed and no one's giving him credit for. He went about changing the policy in a very intelligent way because what did he do? He changed the policy. He issued a memoranda repealing the old memoranda and came out with a new one saying, "They're no longer good law." Yeah, he could've done the sorts of things that might terrorize people, but he didn't. He didn't, and now it's clear to anybody and everybody that the old policies are no longer in effect.

                                                Keep in mind, also, uh, you not only have to listen to the lyrics, you have to listen to the music that underlies the Cole memo. Basically, what the Cole memo said was Washington is not going to either force you or probably allow you to bring these sorts of prosecutions. They went out of their way to identify a bunch of instances where maybe you could justify doing it, but how many of those cases did we actually see filed, uh, in the time that the Cole memo, uh, was in effect? Plus, what it essentially tells agencies, like the DEA, is, "Don't bother investigating these cases because we are not gonna charge them." You tell an investigating agency that an entire category of cases is taken off the board, uh, unless you can make an extraordinarily important case for bringing a prosecution, they're just not gonna bring those cases. Y-you got agents who have a limited amount of time, and they're not gonna investigate cases af-after spending hundreds of thousands of hours, nothing's gonna happen.

                                                And there's another point that really hasn't been made in the media discussion so far. Look at what's happening in that regard with the agents. Now we're saying, "Okay, we're, Washington is not gonna tell the US attorneys that they can't bring these cases. If the US attorneys think it's important, they can." Now, yes, some US attorneys have said, "Oh, I don't think these are important, and so I'm not gonna bring them," and maybe they really think they're not important and, "I'm not gonna bring them." On the other hand, let's face it, US attorneys are wannabes. They wanna be judges, they wanna be senior justice department officials, they wanna be elected, and so a lot of them are gonna say things that they're sure won't anger the constituents whom they're gonna later ask to vote for them. So you have to take, perhaps with not just a grain of salt, sometimes the whole shaker, what some US attorneys are saying now in this regard.

Ilya Shapiro:                       Well, Paul, I-

Marc Levin:                         Thanks, Paul. Do you wanna ... Oh, go ahead, Ilya.

Ilya Shapiro:                       Yeah, this is Ilya. Um, uh, I think that's, uh, a very valid comment. Um, you haven't seen the US attorney from Colorado all of a sudden saying, "Goody, goody, now I get a, now I get to go crazy," uh, because, uh, even though a US attorney's an appointed position, indeed, he has constituents in a sense. He's part of the community, uh, not some [inaudible 00:22:13], uh, and so, it could be that, uh, as I said, on the ground ... You know, I-I-I'm not one of these, uh, the sky is now falling, this is the worst thing ever. Um, the commercial marijuana industry is on pretty solid ground at this point, at least much more solid than it was, uh, five, uh, or let alone 10 years ago, and so this isn't some sort of death penalty or, or, or death knell. Um, there's just gonna be, uh, instability. I-I don't know even if there would be more criminal prosecutions, I don't know how much priorities really will change.

                                                Uh, uh, you know, the Cole memo's rescinded, and so all of a sudden, we are now going to, uh, prioritize, uh, small town, I don't know, college weed smokers over criminal enterprises and firearm traffickers. No. I-I doubt that's gonna be the decision that any US attorney makes, but then, why sort of be mischievous and remove these, uh, uh, reasonable-sounding priorities? Because even the Cole memo, uh, left a, um, a catch-all for public health and safety. The government always let, le-lets itself a, a catch-all, a residual clause, uh, uh, of sort, although here, it's not a legally binding one, it's just, it's just guidance.

                                                And so Sessions could've done the exact same thing by saying, "Look, these priorities are pretty reasonable. I'm gonna leave these memos in place. Everything that's been developed is a fair accommodation, given the legal realities of the federal and, federalism interest at play, but I just wanna reiterate, uh, to my colleagues, uh, US attorneys, that, uh, you know, this Cole memo is not binding law. So if you find reason, and I trust your discretion, uh, to, uh, to prosecute marijuana cases that don't, uh, fully, you know, f-fall fair square in these seven enumerated priorities, if this is a general public health and safety issue, uh, that's fine. Uh, and I just wanna make sure to everything in this country that the law is the law," that sort of thing. Um, that seems, to me, to, th-that would've been a more prudent way of doing this, rather than introducing this, uh, uncertainty, as I said, uh, probably even more, in terms of business climate, uh, than in terms of, uh, uh, criminal prosecutions.

Marc Levin:                         Yeah, no, that's, uh, that's very helpful, and so one of the things I wanted to ask you, is, is there not an advantage to having some decentralization because you could have, you know, DAG provide guides on either side, saying, "These are the cases we, we really, you should be prosecuting"? Um, and on the other hand like this, um, these are the cases that you shouldn't be. Uh, but, you know, US attorneys, obviously they could be fired, but they do have some political independence, and so is there some advantage to, um, having more discretion at that level rather than kind of, um, centralized decision-making in Washington about what categories of cases should be pursued?

Dean Reuter:                     Who would you like to answer that?

Marc Levin:                         Well, both. But I guess starting with Ilya.

Ilya Shapiro:                       Sure. Um, yeah, no, look. I think, I think there, there should be, uh, room for local decision making in different communities, police in different ways, I suppose, uh, within, within means, but, um, uh, yeah, I think the Cole memo, the, the, the, the one that everyone talks about of, of the five, as I said, uh, with these priorities of how to deal with states that legalize, is a reasonable accommodation of, of, you know, how you deal with this odd situation where something is both legal and illegal at the same time and how you set federal priorities. And it could be that federal priorities are different in, in different parts of the country, uh, or different in places that, uh, have legalized versus that, uh, versus that have not.

                                                Maybe the strategy is in places that have not legalized, um, to, to make sure that, uh, uh, since you're dealing with everything that's illegal, and you're dealing with a black market and the, well, what-have-you, a, a highly cash, uh, organizations, and the robberies that attend those, uh, you police that in a different way than in places where you hope that there's orderly regulation in place, and you just want to, uh, you know, get at the things that are disrupting society beyond that. So, uh, I think there's still wiggle room, uh, regardless of what the, um, you know, overall, uh, priorities that are, that, that are set, coming from Washington.

Paul Larkin:                         I think there's an advantage to repealing the memos because of what it is implicitly saying. We're saying that we've got the general guidelines that we always had. We don't need to send a message that we're going to very, very strictly oversee your charging decisions in these states. Like I said, you have to listen to the music as well as the lyrics, and that's what came through in the Cole memo, and that I think is what's coming through now in the Sessions memo.

                                                The US attorney may deem that the biggest problem he has to deal with is bank fraud. In which case, he is gonna tell the investigative agencies that's where they put most of their efforts. He may think the problem of, uh, marijuana is relatively small, and so he'll not put any, uh, effort into trying to persuade the DEA or others to make a great many cases. He'll just wait and see what happens. But bordering Colorado are Nebraska and Kansas, and to my knowledge, they don't have recreational marijuana laws. Colorado also taxes and puts various different types of regulatory restrictions on the marijuana. So, think about this for a second. Suppose you are an entrepreneur and decide you wanna buy marijuana in Colorado for $10 an ounce because you can then transport it into Kansas or Nebraska or Oklahoma, where you can sell it for $25 an ounce. Well, the US attorneys in those latter three states may think that's a much bigger problem than it would be in Colorado because we don't allow this to happen, so they're gonna put a lot more emphasis on this.

                                                So it's not unreasonable to say the US attorneys in Nebraska, Kansas, and Oklahoma can decide this is a much more important issue than Colorado. And that's what the Sessions memo allows them to do. I mean, in Idaho, they may not have a big problem with terrorism, but maybe they have such open end, end spaces, uh, that people are growing marijuana and then shipping it elsewhere. It may be a bigger problem for them. New York City may be very different. Eh, I used to live in New York City. When I lived there, wasn't a whole lot of farm land there, and I doubt there's any more now, so maybe in the southern district of New York, the biggest problem is fraud committed on Wall Street or other sorts of crimes. So what he's done is essentially say, "We're gonna return to the general principles that are outlined in the US attorneys' manual, without Washington trying to dissuade you from deciding what is most important in your district based on your conditions, by having a very special set of circumstances that are going to govern prosecutors' charging decisions."

Ilya Shapiro:                       This is Ilya. But, but note that diversion to other states is one of the priorities listed in the Cole memo, and so while suing Colorado, as Oklahoma and Nebraska tried to do, is not the way to go, uh, they should've really been suing the federal government if the complaint is that the, uh, you know, something that's, that's illegal federally is not being, being policed properly, um, I-I think there's nothing wrong if, if Jeff Sessions, or the US attorneys of those states bordering Colorado, want to set up sting operations, uh, check points, uh, on, on the interstates going, or, or the non-interstates, probably, you might not necessarily use interstates, I don't know, if you're, if you're smuggling as it were. Um, and, and they wanna, they wanna police that, that's, um, that's perfectly fine. Or, for that matter, if the, uh, FBI wants to run a multi-state sting of, of somebody who, as, as Paul described, is, uh, arbitraging, and, you know, and, and buying cheaper in Colorado to sell more expensive in, uh, in Omaha or Tulsa, or, or wherever, I think that's a perfectly appropriate, uh, thing for the federal government to be doing, uh, i-if it wants to enforce those laws.

                                                Uh, but the Cole memo does not prevent that, uh, and indeed it's, uh, it, it lists those priorities. A-a-as I said, uh, th-the Cole memo is a, is a surprisingly reasonable, and I would think, uh, unobjectionable, sort of list of priorities. Um, uh, if it was unreasonable, it would've been, uh, I would think, one of the first things that, uh, Jeff Sessions would've done, would be, uh, it would've been to rescind it or change it, or outline new priorities or whatever the case might be. So, um, uh, uh, yeah, I-I don't think, eh, eh ... For practical purposes, I don't think there's that much disagreement, uh, between you and I, Paul, it's just, uh, uh, we disagree over the prudence of, uh, withdrawing the memo before pursuing the enforcement actions that, that Sessions wants to pursue.

Paul Larkin:                         You know, Ilya, uh, I've always thought you were a very bright guy, and I've always liked what you have to say. Let me just make three ... And I agree with you that there may not, in practice, be a big difference. But if there's not in practice a big difference, then nobody should complain about the fact he withdrew the Cole memo. I mean, if it turns out that the only case that the federal government brings are the ones that the Cole memo said should be brought, then he hasn't done anything except maybe force Congress to look at this issue because it made a, he made it look like he has made it easier to bring these cases. Okay? Secondly, probably the reason that the attorney general didn't do this early in his tenure at the department was early in his tenure at the department, there was probably him and about a half dozen other people in political positions. I don't think they've still filled out the justice department.

                                                There's only so much you can do in the attorney general's office. He needs a whole range of lieutenants to help him on these different matters, and he didn't have them. So, it, I-I would think it's not fair to criticize him for not doing this early on. Besides, he wanted probably to make sure that this was not an unreasonable thing to do, given the fact that nobody had done it for a long time. So, he listened to different people, and he came to his decision.

Marc Levin:                         Well, now, interestingly, Senator Gardner of Colorado has suggested that, uh, Senator Sessions did not, uh, I guess, uh ... He suggested he was mislead, uh, regarding this, and I guess he apparently, he's gonna try to hold up all of the judicial nominations, but, in addition to that, what do you think, um, uh, Congress should do, if anything, regarding this? I mean, should they pass something saying federal law doesn't apply in the states that have adopted, uh, legalized marijuana, that, that ... Obviously, we normally have the supremacy clause, where federal law prevails, but Congress could ostensibly decide to have the opposite scenario here, um, so I was wanting to see what each of you thought Congress should do at this point.

Paul Larkin:                         Ilya, you wanna go first, or you want me?

Ilya Shapiro:                       Sure. Well, I mean, first of all, there's the, um ... For several years now, we've had a writer on the Justice Department Appropriations, uh, which now is called the, uh, Rohrabacher-Blumenauer Amendment, which is to prevent, uh, federal enforcement of, um, marijuana laws against people who are using marijuana lawfully in states where its legal, for medicinal purposes. Uh, and, uh, Sessions did, earlier in the year, uh write Congress, and I think his, his legislative liaisons, uh, are trying to persuade people not to renew that. Um, on the other hand, in Congress, there have been proposals, uh, to extend that kind of a writer to states that have legalized recreationally. Uh, I think that's, uh, that's the McClintock-Polis, uh, Amendment, McClintock of California, Republican; Polis, Democrat of Colorado.

                                                Um, there have also been proposals to allow federally medical marijuana. Uh, Rand Paul and Cory Booker, I think, are leading there. Uh, Tom Garrett, Republican of Virginia, and Tulsi Gabbard, uh, Democrat of Hawaii, uh, proposed, uh, declassifying marijuana altogether as a legislative matter, not an administrative matter. Uh, and Carlos Curbelo, who's a Republican of Florida, and here's a piece of trivia, he is the Republican running for reelection who is most under water, in terms of his vote versus Trump's vote, uh, in their district. He represents the Florida Keys. Uh, he was number two, but Ileana Ros-Lehtinen, who was number one, is not, uh, running for reelection. Anyway, he proposed to treat marijuana business expenses the same as all business expenses, amending the, uh, internal revenue code to allow tax deductions.

                                                I think all of these proposals, uh, are reasonable. I mean, I think, I-I-I would rather leave it to the states, uh, to decide, uh, how, what they want to do, um, you know, I think the federal government, uh, doesn't constitutionally have a role in this, so really, it's, uh, it comes back to the Supreme Court's fault, but, uh, until we get a reversal there, in terms of the expansive Commerce Clause jurisprudence, uh, all of these sorts of measures, of, of, you know, I support, and increasingly, the American people do as well. And curiously, um, uh, in Raich versus Gonzales, Alabama, which is, of course, Session's state and one of the most, uh, uh, anti, uh, marijuana, uh, anti-drug, uh, states in the country, Alabama filed a, uh, an amicus brief, I think Bill Pryor was the attorney general at the time, um, now Judge Pryor of the Eleventh Circuit, uh, uh, eh, supporting, uh, Angel Raich in saying, "Look, we disagree with California's policy on this, but states should be able to determine it." I think that's, that's the proper view to take, both, uh, constitutionally speaking and as a matter of policy.

Paul Larkin:                         I think there are two things Congress should do and two things Congress should not do. The first thing Congress should do is actually debate revising Title 21. Congress put marijuana into Schedule One in 1970, when it passed the Controlled Substances Act. Congress should decide whether it should be removed from there, not the states. That's just not the way a federal system operates. Since Congress is the one that can take advantage of the Supremacy Clause, rather than the states, it's Congress's responsibility to make that decision, not the state's. And Congress should do it. It should listen to the Trump Administration to see what it thinks is the best policy. It should listen to representatives from all the prior administrations, as to what they think is the best policy, and it should, and the Congress should listen to experts at the FDA, the National Institute of Drug Abuse, and elsewhere, to try to make the decision that is in the best interests not of the states that have or have not medicalized or recreationalized marijuana, but, eh, best interest in th-the people of this nation.

                                                Secondly, Congress should consider a proposal that can be drawn ... Eh, ironically, no one has seems to have mentioned it yet, yet it can be taken from the, the way we now regulate alcohol. Various states, such as Virginia, have alcohol beverage control organizations. You can buy beer and wine at a grocery store. If you wanna buy distilled spirits, you have to go to the ABC store. Maybe having the, requiring the states to own and operate marijuana stores would eliminate some, if not many, perhaps even most, of the problems that people foresee, and I've already pointed to, when you allow for the large scale commercialization of marijuana. Limiting the number of people and the number of stores, and requiring that they be state employees, first of all, may make it easier to prevent the type of diversion that I mentioned earlier.

                                                Secondly, it eliminates, I think, all the banking problems 'cause no longer is the revenue going into Chase Manhattan or some other private bank, I'm not saying Chase accepts this money, I'm just using that as a, a hypothetical, because the money then goes into the state treasury, so you, you eliminate the banking problem. And it's easier for the state to manage, eh, its own employees than it is for the state the regulate someone else's employees. You may be able to eliminate some of the harms that come from a medical or recreational marijuana scheme by requiring the states to own and operate the facilities involved.

                                                Now, the two things Congress should not do. The first thing Congress should not do is try to make policy decisions by appropriations, essentially, as a lot of people have said, holding the federal government and the public hostage, because if you don't agree to what somebody wants, we're gonna shut down the federal government. Yes, Republicans do it. Yes, Democrats do it. Yes, each one blame the other when the time comes around, and somebody is in power or somebody wants something done. But the tradition has been not to make substantive decisions in appropriations law. The tradition is reflected in rules in the Senate and House, which say, "We're not gonna make substantive changes in, uh, substantive law through appropriations bills." Put that aside and have a full, and complete debate this year in the Senate and the House, and let everybody vote up or down on it, so we can see where people stand. And if people don't like what their representative and senator did, they can vote them out.

                                                Finally, the last thing is do not hold up nominees simply because the attorney general made a decision you dislike. I mean, that's like saying, "I'm taking ... Unless I got to be quarterback, I'm taking my football and going home." The government has to operate. In order for the government to operate, you need not only a large number of career employees, you need a very sizable number of political appointees. It doesn't matter whether they're Republican or Democrat, liberal or conservative, you need these people o help manage the government, and shutting down the government may look good, uh, because you, uh, don't like the decision some people in there made, but you've got to allow the government to operate. My impression has been that the federal government, uh, will do 85% of the same thing, from administration to administration. The last 15% may be what makes it into the press. That last 15% may be the most controversial, but if you keep people from running, uh, the federal government, you're shutting down not just the 15, but the 85%, or you're at least making it far, far more difficult for that to happen.

                                                So, those are two things Congress should do and two things Congress shouldn't do.

Ilya Shapiro:                       I actually agree with most of that. This is Ilya. Uh, I'm agnostic on the question of regulation by appropriation. I think there, eh, have to be, eh, certain times where using the power of the purse, um, by acting in that way, may be appropriate, uh, although I agree that, uh, enforcement decisions and kind of executive decision making should be left to the executive rather than, uh, rather than Congress, uh, doing with what money what it, what it, uh, hesitates to do, uh, without now regulations. Um, but, uh, I think, uh, it would be great if we had a, uh, an open discussion in Congress, uh, about this. I don't think it's gonna happen this year. We're not quite at that tipping point, although we're getting there. I mean, this is, this issue ... Eh, uh, the latest Gallup post, poll, shows, uh, 64%, uh, of Americans in favor of, of legalizing marijuana. On this issue, public opinion has changed more rapidly than on any, uh, policy issue in American history except gay marriage. So that's the rapidity with which people's opinions, uh, have changed on this.

                                                At a certain point ... You know, Congress is always a lagging indicator, but at a certain point, and I don't know whether this is generational, because not surprisingly, millennials are the most in favor of legalizing, then Gen X, then boomers, you know, then the silent generation, um, but at a certain point, we're simply going to get legislators in Congress for whom, uh, you know, th-th-that's gonna change, uh, the federal law, and it's perhaps surprising that the law hasn't changed since the Nixon administration. Um, I don't know if it's gonna happen this year, but you're right, Paul. It, it would be healthier if we did this in, in open debate, uh, on the floor of the, of the House and the Senate, rather than, uh ... or in committee, uh, rather than, uh, through these, uh, uh, sideline skirmishes and, and holding up nominees and appropriations and, and, uh, trying to cut the, the Gordian federalism knot.

Paul Larkin:                         Let me just add one point. I'm reminded of a line that, uh, Justice, excuse me, Chief Justice John Roberts wrote in one of his opinions dealing with racial discrimination. He said, "The way to end discrimination is to end discrimination now." That's why I think the way to debate this issue is debate it now. Let's just get (laughs), let's just get it on, 'kay? The attorney general has set it up perfectly. Maybe people are uncomfortable about debating it now. Personally, I don't think that matters. I think our representatives should be uncomfortable when they have to make important decisions. They don't get a sinecure when they get elected. They get a specific number of months, and I think what we need to do is force them to debate these issues, so we can decide if we wanna keep them.

Ilya Shapiro:                       I imagine it's simply a matter of priorities and dealing with tax reform and Obama Care, and all these other things coming down the pike are judged to be more important than, uh, than making these, uh, marijuana reforms. Even if there were a majority, uh, to, uh, to go with a particular direction or otherwise.

Marc Levin:                         Well, I think this has been really enlightening. I wanted to, uh, at this point, see if there are any, uh, questions or comments from listeners on the call.

Dean Reuter:                     Stand by just a second. In a moment, we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question, push the star button and then the pound button on your telephone.

                                                We have quite a few people on the line. If you have a question, push the star button and then the pound button on your telephone. We'll get to as many of you as possible. Looks like we begin with three questions today, so let's take our first call.

Jeff Dikes:                           This is Jeff Dikes from Denver, Colorado. Uh, eh, s-some of the states, including Colorado, where legal, eh, eh, where, uh, marijuana has been reportedly legalized at the state level, have said that they will, uh, resist any action by the federal government to interfere with that legalization. They will try to defend the Colorado so-called legalization. We all know about the supremacy clause. Uh, when there is a conflicting state law, the federal law controls. Um, d-do the states have any legal leg to stand on? Uh, it seems to me that they don't, but, uh, candidates for attorney general and others, uh, seem to indicate that they will try to assert some legal defense to any federal prosecution. Uh, do they have any leg to stand on?

Paul Larkin:                         This is Paul Larkin. Um, they do, but it's, eh, sort of a, a type of leg that people don't normally think of. A judge, when he doesn't like the charging decisions that the US attorney has made, has, you know, a recourse to that. You know, prosecutors need extensions of time. They need all sorts of actions th-that the judge has entirely within his discretion. And if he doesn't like the charging decision in a particular case that the US attorney made, th-the judge can make sure the US attorney is aware of the fact that he's getting no further extensions of time to do anything in the case. Things like that. What the states could observational data if they wanted was just be less willing to partner with the federal government on matters.

                                                Now, are they going to actually do that? I doubt it. You know why? Because the US attorney has media access, and if he goes to the media and says, "The state of X is not cooperating in my criminal investigation," uh, the person who made that call is gonna be in a very uncomfortable position because then the media are gonna turn to the district attorney, the attorney general, whatever. So, there are steps they can take, but they're all political, not legal.

Ilya Shapiro:                       Um, I agree with all of that. Yeah.

Dean Reuter:                     Very good. If you'd like to ask a question, push the star button then the pound button on your telephone. Two questions pending. Let's take a-

Ilya Shapiro:                       Oh, I will add one more thing, actually ... This is Ilya ... Uh, and that's jury nullification. That's not states doing something, but it's, it's juries, and especially in drug cases, I think they ... I know in D.C., they have been known to, uh, not convict people who are caught red handed with, uh, you know, everything short of a confession.

Dean Reuter:                     Caller, go ahead.

Bill Otis:                               Um, yeah. This is Bill Otis, and I'm happy to have the chance to talk with three pals of mine, uh, about this issue. As often happens, uh, I agree mostly with Paul Larkin, uh, uh, although I would disagree in this point. I don't think the attorney general deserves credit primarily for forcing a debate. We've actually been having this debate for about 40 years. I think he deserves credit for doing something that the people on the right, uh, have traditionally thought the attorney generals should do, and that is robustly to enforce federal law as it is written rather than as one group or another would prefer that it be written. For years, people generally on our side criticized Obama and Eric Holder for being tepid in the enforcement of, for example, immigration law and looking the other way at one group of immigrants or another. But now when, uh, the Trump Administration, through the attorney general, um, uh, has ended doing that with respect to marijuana, now we, some of us have a problem with it. I-I don't, I don't that squares.

                                                I also think that what is actually going on here is something that hasn't been mentioned in so many terms. Um, what the Cole memo did, and other similar memos did, in the Obama Administration, it was legalization on the installment plan. As Paul has correctly point out, there has not been a four square debate in Congress about the legalis- ... the four square legalization of marijuana, which is what this is all actually about. If we want to legalize marijuana, let's have that debate in Congress and have it up or down, but the Obama Administration didn't want that debate. Um, they didn't want it when they controlled both the White House and both houses of Congress. The Bush Administration before that didn't want that debate.

                                                And I strongly suspect that the reason it wasn't wanted was for another underlying reality here, which is that the Libertarian theory ... Ilya, of course, is, is with the Libertarian Cato Institute ... The Libertarian theory here would extend beyond merely the legalization of marijuana. The Libertarian theory is that it's up to the individual. In a, in a va- ... In a country that values freedom, it's up to the individual to decide for himself what substance he wants to put into his own body, and that's a principled argument. I don't agree with it, but it is a principled argument. The problem from the Libertarian point of view, is that it applies equally to heroin and sentinel as it does to marijuana, which is one reason, in my view, the Libertarians don't want to have this direct debate.

                                                In any event, uh, I appreciate your giving me, uh, that platform, and I'd be eager to hear what a-all of you have to say in response. Thanks very much.

Dean Reuter:                     Thank you. Who wants to take a first, uh-

Ilya Shapiro:                       Sure. I mean, that was, I guess, mostly addressed to me. This is Ilya. Um, uh, I-I do, uh, say that what ... I-if ... I-I try to avoid labels, but I prefer classical liberal to Libertarian, for whatever that's worth, but I appreciate those, those points, Bill. Uh, I was told there'd be no, uh, debating of, uh, uh, uh, vending machine heroin for five-year-olds, but I guess we can't avoid that, uh, that, that pressing, uh, issue. Um, uh, look, uh, th-the discussion that, uh, that Paul and I have been having, uh, i-is prudential. It's, it's policy. Uh, this, uh, perhaps unusually for a federal society, uh, uh, forum is not about the legality of, of something here, not, eh, uh, here or there, although, you know, obviously, we-we've, we've touched on that in terms of, um, you, th-the Commerce Clause and in terms of, uh, of what Congress should legislate, but, um ...

                                                And so the, the question of, of other drugs, uh, the, the, the cost and benefits, the, the policy considerations, uh, may well be different. Uh, although the federalism considerations I think are quite similar. Uh, and so the debate over whether to legalize heroin or not, uh, I think is more similar to the debate, uh ... or sorry, is, is different from the debate over whether to legal marijuana or not. Uh, but, uh, uh, the federal government's role in, in all of that, I think, uh, the debates are, are quite similar. And so, as long as the federal government is focused on those issues that are spelled out in the Cole memo, the, the criminal enterprises and the violent gangs, and the spilling over into states that haven't legalized and, and all those sorts of things, as long as the federal government sticks to those, uh, uh, issues, then, you know, we can set to a later day, h-how to handle, uh, opioids or, or, uh, or, or anything else.

                                                But, but for marijuana, um, you know, this, th-th-the question of legalization ... And yeah, as a, as a policy matter, uh, the first vote I took, actually, after becoming a, a US citizen, uh, a few years ago, my ... Right before leaving the District of Columbia, the first vote I took, uh, w-was to legalize marijuana, although I, myself, uh, like Randy Barnett, for that matter, who argued Raich versus Gonzales, had never tried, uh, uh, marijuana. I have too many other vices to introduce others. So, um, but that's, you know ... I think policy question of, of legalization is different than, than the federalism issue and the prudential ones that, that Paul and I have been discussing.

Paul Larkin:                         I agree with Ilya. My view is let's deal with one intractable problem at a time.

Dean Reuter:                     All right, let's continue to deal with one, uh, caller at a time. We've got one question pending, and I think we have time for this. Um, go right ahead, caller.

Bill James:                           Hi. This is Bill James, and I think it's a really great federalist, federalism issue, especially in Massachusetts, where the ratification of the Constitutions, the first premise was that no powers not expressly granted to the federal government are forbidden to be added, and the federal government is restricted to only police Americans for treason, counterfeiting, piracy, and runaway slaves. And the 13th Amendment removed the one. And so the Supremacy Clause applies only to the enumerated powers. And so I think it's a really good thing for the states to say, "There is no federal sovereignty to be involved at all in drug enforcement."

Dean Reuter:                     There's an implicit question there. Who wants to respond?

Ilya Shapiro:                       Uh, well, this is Ilya. I'll just say that to the extent something is interstate, truly interstate and truly commerce, there is an enumerated federal power to deal with it, but, uh, there's a rub there about how you define [crosstalk 00:54:20].

Bill James:                           On, on the Commerce Clause ... So, I, I'm a soldier, not a, not a lawyer. In the Commerce Clause, especially if you read the first 30th or the 30 Federalist Papers, they are all about commerce between states being a cause of war and a path to war, and so the Commerce Clause was written to prevent the states from, from Vermont ... succession becoming a [inaudible 00:54:48] between New York and New Hampshire. The Commerce Clause was not intended to regulate commerce and ... I mean, Madison's, uh, uh, veto over federal laws whatsoever was rejected by the convention and restricted to specifically enumerated powers. I think the, the whole Commerce Clause is completely misconstrued around this idea that if it has to do with commerce ...

                                                 And you could read Madison's statement on the House ... or in, in 1794, where he's talking about, I can't, uh, I can't remember which ... what it was about, but the fishery thing. Anyway, well, the Commerce Clause is really highly restricted to paths to war, not-

Ilya Shapiro:                       Well, I'm, I'm not, I'm not sure about that. I'll have to reread the history. I mean, R-randy Barnett's seminal article [inaudible 00:55:40] article on, uh, the meaning of commerce, uh, at the time, uh, using dictionaries and essays and, and all those sorts of things, uh, talk about, uh, uh, and, and what, what, uh, uh, the regulation of interstate commerce means, uh, seems to indicate that, uh ... You know, I'm with you halfway, in the sense that it's not kind of a, a, a free floating sword for Congress to do whatever it wants. It's, it's there to make commerce regular. Regular mean, regulate means to make commerce regular, to prevent, you know, what was causing those interstate wars, protectionism.

                                                So, uh, a state raises, uh, protectionist barriers to another state's, uh, uh, goods coming in, or, or what-have-you. That's, that's absolutely correct. So to the extent that a, a federal, uh, regulation is not, uh, making commerce regular, then it does run a foul or go beyond what the, what the Commerce Clause, uh, does, but I, I think it's, uh, I think it's too cramped to, to read it as simply dealing with, uh, pirates and, and, and runaway slaves and, and things of that nature.

Paul Larkin:                         Let me add just a couple of other points. If you take a look beyond the Commerce Clause, you'll see there are a variety of provisions the Constitution designed to deal with, uh, the internecine warfare between states that was characteristic of the period when we were governed by the Articles of Confederation. There is, for example, the Poor Preference Clause, and there is also the Interstate Compact Clause, but those essentially nullify the state's ability in individual instances to try to give preferences to their own people over allowing people from across the nation to engage in commerce freely. What the Commerce Clause did was go beyond simply the ability, uh, to nullif- to nullify individual acts by the agencies, but allow Congress, for example, to devise a code, or a tax scheme, or a set of customs laws, that regulated the traffic from New York to South Carolina, or New Jersey, or Massachusetts, so that each individual state couldn't have a, a particular system that favorited self in ways that maybe the Poor Preference Clause and the Compact Clause would not itself have prohibited.

Bill James:                           Or I think if you look at the five vetoes by Madison, Monroe, Jackson, Polk, and Buchanan, and you can see these listed at internal [inaudible 00:57:59], um, they were very specific that the federal government has no authority over, over commerce, in terms of roads, so the Federal-Aid to Highways Act of 1956 is in direct violation of the post roads restriction of the Constitution. That's my focus on this thing, is that we're trying to build Hyperloop and JPods and, and sustainable transportation networks very similar to how the internet replaced the federal analog [inaudible 00:58:27]. And it is that, it's that intrusion into commerce that blocked innovation that is similar to the federal intrusion into drug enforcement and a violation of federalism.

Dean Reuter:                     Well, um, it looks like we are out of time. We still have questions pending. Um, uh, gentlemen, can we try and take one more question?

Ilya Shapiro:                       I, I'm happy to go as long as, as long as, uh, there are listeners.

Paul Larkin:                         Me too.

Bill James:                           [inaudible 00:58:56].

Dean Reuter:                     All right. Let's see if we can get this final question in. We've got this one question pending. Go ahead, caller.

Steve:                                   Hi, it's, uh, Steve [Brocken 00:59:03]. Uh, Cole memo, I think, had one big benefit, uh, although it's rather obvious the aid enforcement priorities gave marijuana-related businesses a guideline with win, within which they would operate because a smart operator, within a state, you know, obviously doesn't wanna become a defendant in a criminal case. You know, smart ones will continue to do that, even though, but I think it did have that effect. I also find it really interesting that the appellate court, um, it was in California, I think in the Eleventh Circuit, it was several years ago, when, um, a defendant was [inaudible 00:59:37] on, on appeal for, uh, prosecution. It was thrown out because they were following the state law. Now, that, if it happens to a recreational company, is, I, out there, I, I imagine it'd follow suit the same way. And it really sets this up at the Supreme Court an interesting way because you have a very liberal issue, but you have conservative judges who have no favoritism, well, I shouldn't say no favoritism, but aren't big fans of the Commerce Clause.

                                                 I mean, when you look at Justice White, and Alito, and Roberts, and, um, eh, uh, the [inaudible 01:00:11] names tip of my tongue, uh, the last appointee, uh, I think this will be incentive for a very interesting, eh, uh, case. And even Gonzales V. Raich, if you look at the court then, the liberals on the court really favored the, the Commerce Clause and its ability to, um, uphold a conviction. Uh, and, where the, it was the conservatives in the court that actually had reservations. So I think we're looking at something that's gonna be very interesting coming down the pike, um, if it should it get that far. I'm just wondering if you think, uh, if any of you feel the same way.

Paul Larkin:                         This is Paul Larkin. Um, as to whether this will create some interesting legal issues, you betcha. As to whether the Ninth Circuit got it right in the McIntosh case, no, it didn't. The question of the federal statue is not whether somebody is acting in compliance with state law. It's whether the federal government's preventing the state from implementing a medical marijuana program. They're very different issues and would have very different answers.

Dean Reuter:                     Thank you. Ilya Shapiro?

Ilya Shapiro:                       Um, I, I, eh, I think it was [Oscalin 01:01:16] who wrote that, uh, that opinion, if I'm not mistaken, w-with [inaudible 01:01:20], who are pretty conservative, uh, uh, judges, and, uh-

Paul Larkin:                         You know what they say, Ilya, even Homer nodded.

Ilya Shapiro:                       (laughs). Uh, look, uh, eh, eh, I understand your larger point about it being inappropriate for Congress to, to legislate through, uh ... or to, uh, regulate through appropriations, but I'm not sure it's unconstitutional.

Dean Reuter:                     Well, gentlemen, this is Dean Reuter. I wanna thank all of you for, uh, your thoughtful, uh, responses here, your presentations, and your time. Uh, I certainly appreciate it. It's been most elucidating, especially as was mentioned at the outset, uh, getting this together on such short notice. Uh, so my thanks to Paul Larkin and Ilya Shapiro. I also wanna thank Marc Levin for moderating, uh, making my job a lot easier today, so, uh, uh, I, and as well, thanks to the audience. A reminder to the audience to check your emails and our website for upcoming Teleforum conference calls, but until that next call, we are adjourned. Thank you very much, everyone.


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