Tag: drug

Prop 19, Employment at Will, and Social Peace

Writing at CNN, my colleague Jeffrey Miron puts his finger on one reason for the disappointing defeat of California’s Prop 19:

Prop 19 failed also because it overreached. One feature attempted to protect the “rights” of employees who get fired or disciplined for using marijuana, including a provision that employers could only discipline marijuana use that “actually impairs job performance.” That is a much higher bar than required by current policy.

Like so many other developments in employment law in recent years, this would have chipped away at the basic principle of employment at will, which holds that in the absence of a contract specifying otherwise, either party to an employment relation may end that relation at any time for any reason or for no reason at all.

It was no doubt inevitable that the proposition would fare poorly among self-identified conservatives and older voters. But the “users’ rights” provisions were enough to raise doubts even among liberty-minded thinkers like David Henderson, who predicted that by signaling hostility toward freedom of association, such provisions would “make the drug-legalization hill even steeper.”

Marijuana of course remains illegal under federal law, which means that its consumption would at one and the same time have been 1) protected under employment-discrimination rules, and 2) illegal and subject to prison sentences. If this paradox seems vaguely familiar, maybe it’s because not that many years ago – before the Supreme Court’s 2003 decision in Lawrence v. Texas – there were localities where consenting homosexual conduct was simultaneously protected under one set of laws, and unlawful under another. Indeed, there were more than a few advocacy groups that worked to promote the new controls over employer decisionmaking and yet never troubled themselves to work for repeal of the still-on-the-books anti-gay prohibitions. If the goal is to achieve social peace, however, rather than wage constant culture war on each other, you’d think the “leave people alone” message would hold more appeal than the “fall in line or you’ll hear from our lawyers” message.

Jeffrey Miron surmises, no doubt rightly, that the problem of undislodgeable tenured stoners in the workplace would be more the exception than the rule. Yet it’s worth noting that the issue has already arisen in various lawsuits in which workers with a doctor’s note recommending marijuana use have contested firings. Lawyers have also eagerly cobbled together suits over related issues, as with this class action noted less than two years ago at my other website, Overlawyered:

Starbucks’s job application asked prospective baristas if they’d been convicted of a crime in the past seven years and added for “CALIFORNIA APPLICANTS ONLY”, at the end, that minor marijuana possession convictions more than two years old didn’t have to be disclosed, in accord with a state law along those lines. Entrepreneurial lawyers then tried to steam-press $26 million or so out of the coffee chain on the following theory: that the clarification was placed too far down the application after the original question; that Starbucks had therefore violated the California Labor Code; and that each and every Starbucks job applicant in California since June 2004, perhaps 135,000 persons, was owed $200 in statutory damages regardless of whether they had suffered any harm. Per John Sullivan of the Civil Justice Association of California, the lawyers also took the position that “it didn’t matter that two of the three job applicants who signed on as named plaintiffs testified in court that they read the entire application and knew they didn’t have to mention a marijuana conviction (which neither had anyway!)” The court refused to certify the class and made the following observations (courtesy CJAC blog):

* “There are better ways to filter out impermissible questions on job applications than allowing ‘lawyer bounty hunter’ lawsuits brought on behalf of tens of thousands of unaffected job applicants. Plaintiffs’ strained efforts to use the marijuana reform legislation to recover millions of dollars from Starbucks gives a bizarre new dimension to the every day expressions ‘coffee joint’ and ‘coffee pot.’”… “The civil justice system is not well-served by turning Starbucks into a Daddy Warbucks.”

Ilya Somin at Volokh Conspiracy notes that “the case against the War on Drugs and other ‘morals’ regulations is very similar to the standard conservative critique of economic regulation.” But if a much-needed rollback of morals regulation is made the excuse for an expansion of economic regulation, there may be grounds to wonder whether the goal is truly freedom at all.

Heritage and Prop. 19

Over at the Huffington Post,  I scrutinize a recent Legal Memorandum published by the Heritage Foundation on the Prop. 19 ballot initiative.

Here is an excerpt:

The Heritage memorandum claims that if Prop 19 were approved, it would conflict with the federal criminal statute, the Controlled Substances Act and thus “invite litigation that would almost certainly result in [Prop 19] being struck down” as unconstitutional. This legal claim is dead wrong. While it is true that the supremacy clause of the Constitution makes it clear that federal law will override a conflicting state law, that clause simply has no application here. The federal law on marijuana remains in force, but that does not mean that a state government is under any obligation to assist the feds. As the Supreme Court noted in New York v. United States (1992), the state governments are neither “regional offices nor administrative agencies” of the federal government. Let’s take another example. Suppose Congress were to criminalize, say, cotton candy–would California be in violation of the Constitution because its police agents are not now empowered to arrest people producing and possessing cotton candy? No. Nor could Congress compel the California legislature to move against cotton candy producers and consumers. Here again is the Supreme Court: “Even where Congress has the authority to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” (New York v. United States, 505 U.S. 144, 166 (1992)). Prop 19 is consistent with the constitutional principle of federalism.

For additional Cato scholarship on drug policy, go here and here.

Barack Obama’s War on ‘Chooming’

My Washington Examiner column this week begins with a look back at the Disco Era:

In his high school yearbook photo, President Barack Obama sports a white leisure suit and a Travolta-esque collar whose wingspan could put a bystander’s eye out. Hey, it was 1979.

Maybe that explains the rest of young Barry’s yearbook page, with its “still life” featuring a pack of rolling papers and a shout-out to the “Choom gang.” (“Chooming” is Hawaiian slang for smoking pot.)

Survey data suggest some 100 million Americans have tried pot, including political elites and drug war supporters Bill Clinton, Al Gore, Newt Gingrich and Sarah Palin. So the point here isn’t to play “gotcha” by calling the president out on some harmless fun three decades ago. It’s to ask why he isn’t doing more to change a policy that treats people engaged in such activities as criminals.

As I note in the column,

in his new National Drug Control Strategy [.pdf], Obama “firmly opposes the legalization of marijuana or any other illicit drug” and boasts of his administration’s aggressive approach to pot eradication. Watch your back, Choom Gang.

This may present Obama with a serious moral dilemma if and when California votes to legalize recreational use of marijuana this November. (More here in this podcast).

Obama’s ‘New’ Drug Strategy

Ho-hum. Another administration, another “comprehensive plan to combat drug abuse, putting the focus on prevention and treatment strategies.” This one “calls for a 15 percent reduction in youth drug use, a 10 percent decrease in drugged driving, and a 15 percent reduction in overall drug-related deaths by 2015.” It involves more central planning – “ the creation of a community-based national prevention system” – more taxpayers’ money – “an expanded array of intervention-oriented treatment programs” – and more nannyism – “a push to screen patients early for signs of substance abuse, even during routine appointments, and the expansion of prescription-drug monitoring programs.” And don’t forget the ever-popular, ever-futile “more international cooperation in disrupting the flow of drugs and money.” Let’s write down those percentage goals, modest as they are, and see how many of them get accomplished.

As it happens, I had a chance to meet with drug czar Gil Kerlikowske and his top aides last year, as part of a series of outreach meetings as the new team planned its strategy. It doesn’t look like my advice was taken. Of course, I probably didn’t help my case by noting that our last three presidents have acknowledged using illegal drugs, and it is just incomprehensible to me how they can morally justify arresting other people for doing the same thing they did. Do they think that they would have been better off if they had been arrested and incarcerated for their youthful drug use? Do they think the country would have been better off if they had been arrested and incarcerated? If not, how do they justify punishing others?

I then suggested that they pursue the policies recommended by Timothy Lynch and myself in the Cato Handbook for Policymakers:

● repeal the Controlled Substances Act of 1970,

● repeal the federal mandatory minimum sentences and the federal sentencing guidelines,

● direct the administration not to interfere with the implementation of state initiatives that allow for the medical use of marijuana, and

● shut down the Drug Enforcement Administration.

Suspecting that the administration despite being headed a young president who in 2004 had declared the war on drugs an “utter failure” and advocated the decriminalization of marijuana, would not adopt my proposals, I went on to recommend a few mildly ameliorative reforms: stop federal lobbying in state initiative campaigns, stop federal raids on medical marijuana dispensaries and other interference with state policy choices, and stop the Pentagon from giving military equipment to local police forces.

I must admit, though, that the other think tank analysts at the meeting, both liberal and conservative, offered the sorts of proposals for more social workers and more transition programs and more doctors that seem to have ended up in the “new” proposal. Perhaps I should have come up with a couple of proposals that would have cost more money rather than less.

Obama’s Populism a Hoax: ObamaCare Is a Sop to Big PhRMA

From the invaluable Tim Carney:

The Obama team regularly dismisses opponents as industry lackeys. The Democratic National Committee blasted out e-mails this week warning that “for every member of Congress, there are eight anti-reform lobbyists swarming Capitol Hill” and “Congress is under attack from insurance lobbyists.”

But drug industry lobbyists, according to Politico, spent the weekend “huddled with Democratic staffers” who needed the drug lobby to “sign off” on proposals before moving ahead. Meanwhile, we learn that the drug lobby is buying millions of dollars of ads in 43 districts where a Democratic candidate stands to suffer for supporting the bill. The doctors’ lobby and the hospitals’ lobby are also on board with the Senate bill.

So the battle at this point is not reformers versus industry, as Obama would have you believe. Rather, it is a battle between most of the health care industry and the insurance companies.

(And the insurers are not opposed to the whole package. On the bill’s central planks — limits on price discrimination, outlawing exclusions for pre-existing conditions, a mandate that employers insure their workers and a mandate that everyone hold insurance — insurers are on board. They object mostly that the penalty is too small for violating the individual mandate.)

Read the whole thing.

Drug Violence in Mexico

The apparent drug gang killings of U.S. consular employees this weekend in Juarez, Mexico are a bloody reminder that President Obama is getting the United States involved in yet another war it cannot win. Drug gang killings also occurred in Acapulco, with a total of 50 such fatalities nationwide over the weekend.

Unfortunately, Obama has responded to the latest incident by following the same failed strategy as his predecessors when confronted with drug war losses: a stronger fight against drugs.

Though the deaths are the first in which Mexican drug cartels appear to have so brazenly targeted and killed individuals linked to the U.S. government, illicit drug trade violence has killed some 18,000 people in Mexico since President Calderon came to power in December 2006—more than three times the number of American military personnel deaths in the Iraq and Afghanistan wars combined.

The carnage only shot up after Calderon declared an all-out war on drug trafficking upon taking office. After more than three years, the policy has failed to reduce drug trafficking or production, but it is weakening the institutions of Mexican democracy and civil society through corruption and bloodshed, which are the predictable products of prohibition.

The 29 people killed in drug-related violence this weekend in a 24 hour period in the state of Guerrero sets a dubious record for a Mexican state. And an increasing number of Mexicans, including former Mexican Foreign Minister Jorge Castañeda, are calling for a thorough rethinking of anti-drug policy in Mexico and the United States that includes legalization. Legalization would significantly reduce drug cartel revenue and put an end to an enormous black market and the social pathologies that it creates.

CBS News Reports on Prospects for Drug Policy Reform

CBS News has a good report out on recent developments in drug policy, including extensive coverage of the Cato report, Drug Decriminalization in Portugal. Here’s an excerpt:

Portugal’s case is important, Greenwald says, because it provides hard evidence that removes the debate from the realm of speculation.

“If you’re the first state to do it, there’s really no way you can point to evidence of what will or will not happen. … It’s just theory and it’s very abstract,” he said. “The more examples that arise and the more that you can prove that the sky doesn’t fall in,” he said, the more politically feasible drug liberalization will become in the U.S.

So far, Portugal has largely flown under the radar, even in drug policy circles. But Greenwald says that, six months after his paper was released, he’s getting more invitations than ever to present it. In August, New York Times columnist Nick Kristof cited it in a column praising Webb’s reform push.

Read the whole thing.  For more Cato scholarship on drug policy, go here.

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