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The Trump White House intends to step up the war on drugs including certain substances that individual states have made legal for recreational use (marijuana).

Bearing in mind that Nixon, who signed the original Controlled Substances Act and created the DEA, is suspected of instructing law enforcement to use the law as an excuse to arrest protesters (while the United States has protections for free speech, any protester with so much as a gram of marijuana on him could be arrested and held in jail; meanwhile, as felons, they lose the ability to vote), it is possible Trump could use the very same laws to arrest and disenfranchise liberal citizens who would oppose him both in embarrassing protests and future elections.

If Trump were to attempt this, I wonder what positions the states would take? Specifically, those states that have legalized it. I don't expect anyone to answer that (it would just be speculation).

But I think a legitimate and relevant question is-- how did the states handle it during the Nixon administration? Were they complicit with federal efforts to arrest war protesters on the grounds of drug possession? Or did they attempt to protect their states' citizens' rights? What insight does this give us into what states would and could do today?

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    I think there's a disconnect here...during Nixon, Marijuana was illegal everywhere in the US, so there really would have been nothing for the state to 'protect'. Which is entirely different now, where many states have made it legal. The question also implies that that is perhaps what Trump is planning...which is pure speculation and actually goes against what Trump has stated previously (the current talk about pushing back on the legality of it is mainly coming from Sessions...not Trump as far as we can tell.) – user1530 Feb 26 '17 at 7:58
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    When was the last time "states' rights" prevailed on any significant issue? Well before Nixon, I'd say. – hobbs Feb 26 '17 at 8:04
  • "states' citizens' rights" - Admittedly, I'm not a lawyer, but I wasn't aware that holding recreational drugs was a right in USA (with possible exception of certain NA tribes that use hallucinogens in cultural/religious ceremonies) – user4012 Feb 27 '17 at 1:23
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    @Magisch not necessarily. There's a bit of a converse relation there. The states with the bigger prison industry aren't necessarily the states with the lax Marijuana laws. For that plan to work, the feds would have to start taking rather large 'over-steps' in a lot of regions that likely would not sit by quietly. – user1530 Feb 27 '17 at 15:20
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    @user4012: No, the point here is that they were arrested for protesting, under the pretense of a drug arrest. Many protesters are arrested for things like jaywalking (because they can't be arrested for protesting) and then searched. When drugs are found, the original charge is dropped, often because it is trumped up. This is gaming the system. The 4th amendment is supposed to protect citizens from arbitrary search, and is supposed to exclude any evidence from a unlawful search. There are many questions involved here that make it more complicated than you are making it out to be. – John Wu Feb 27 '17 at 18:29
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An important distinction before answering: Congress, not President Nixon created the DEA. Nixon merely approved Congress' idea. From your wiki link:

  • Passed the House on September 24, 1970 (342-7)
  • Passed the Senate on October 7, 1970 (54-0)

How did states react to the DEA?

I am too young to remember how states reacted, and I'm not going to do a literature search. But I'm going to guess the states were OK with it.

Why do I say that? Look at the House vote: passed 342 to 7. The house is considered by many to more reflect the will of the people than the Senate does. 342 to 7 is a pretty strong indicator that the people wanted and approve of the Controlled Substances Act, and the DEA contained within.

it is possible Trump could use the very same laws to arrest and disenfranchise liberal citizens

I take with a grain of salt a decades old Harper Magazine interview with one Nixon aide. Sole source claims of a conspiracy on a hot button issue calls for more verification.

Regardless, the President (from any party) would have a difficult time deliberately disenfranchising large numbers of people via the war on drugs. Arrests and convictions are largely done by thousands of local and state law enforcement officers, and local and state court systems. The White House would have a hard time pushing those buttons and levers. If mass disenfrachisement is happening, it's coming from decentralized influences.

The President could attempt to use federal forces in an attempt to mass disenfranchise. But the capacity to do so is limited. There aren't many federal forces, and most of those focus on the mass drug transit zones and the big dealers.

(The few federal possession charges are usually tack-on charges in federal cases that originated with other issues)

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    Re "vast conspiracy": I've read the source, and it doesn't mention any large conspiracy. Rather it records a relevant ulterior motive, which was a continuation of a various long-standing policies of racially/culturally biased anti-drug laws. Such a motive constitutes a small conspiracy, and it's hardly contentious that Nixon believed in conspiracies against him, and was prone to conspire. – agc Feb 26 '17 at 16:37
  • @ajc ... fair enough. I overplayed the impact of the text. I'm thinking of a re-word. – Paulb Feb 26 '17 at 17:21
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They might refuse to cooperate, but only with unpopular policies.

As you said, speculation is outside the scope of this site. However, it is instructive to see what they have done before, when they are willing to pick a fight with the feds, and when they choose to cooperate.

The states are occasionally willing to pick a fight against unpopular federal government policies. The governors of Oregon and Washington- two states that notably have also legalized recreational use of cannabis- recently ordered their state governments not to cooperate with the federal government's immigration enforcement.

The order directs state agencies to refrain from inquiring about a person’s immigration status for the sole purpose of determining whether someone has complied with immigration laws, such as those related to work permits or alien registration.

The order maintains the State Patrol’s existing policy of not stopping, detaining or interrogating people solely to determine their immigration status, said Kyle Moore, State Patrol spokesman.

Likewise, state agencies under the order are not allowed to aid or enforce any federal program to register people on their basis of religion. That part takes aim at the prospect at a national Muslim registry, which some Trump supporters have suggested.

The order also bars state agencies from discriminating against people based on national origin. And it says agencies cannot refuse services to people because of their immigration status, except as required by state or federal law.

The order is part of a broader, nationwide push by Democrats aimed at limiting the Trump administration’s agenda on refugees and immigrants who lack legal status to be in the country.

Democratic officials in states such as California, New York, Massachusetts and Oregon have pushed to shield state data from the federal government.

However, this is rare. It should also be noted that these states usually cooperate with the feds, and also have a long history of cooperating on immigration, enabling the quiet deportation of an unprecedented 3 million undocumented immigrants.

So it would seem that the states are only willing to oppose the federal government when it is politically advantageous to do so, and will cooperate as long as the policies do not attract widespread negative attention. Because cannabis use is still widely stigmatized, this suggests that the states will not challenge DEA enforcement as they have immigration enforcement once it became unpopular.

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If Trump were to attempt this, I wonder what positions the states would take?

they would have both an ally and an adversary in the whitehouse and the congress.

on one hand, the law is clear that federal laws trump state laws so from the feds' perspective, the legalization is illegal.

on the other hand, the constitution is also clear as the feds' "enumerated power" and regulating a drug is not one of the mandates, especially the legalization is limited to in-state consumption, thus the commerce clause doesn't apply.

If I were the states, I would take up the constitutionality argument -> if the conservatives / federal government are smart, they would start the lawsuit against the state, and only to lose it so to stripe the federal government of many of its powers not granted under the constitution.

the same strategy could have been used on the EO banning immigration from those 7 countries.

  • I'm not sure I'm following. Are you saying the push back on the state laws is an elaborate ruse to eventually de-legitimize federal oversight of drug laws? – user1530 Feb 27 '17 at 15:18
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    There are buttons on your keyboard that allow for letters to be capitalized. – Drunk Cynic Feb 28 '17 at 1:38
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    Precedent has been set that the Commerce Clause applies to intrastate commerce that would indirectly affect interstate commerce: Wickard v. Filburn. " The Court decided that Filburn's wheat growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally (interstate), and is therefore within the purview of the Commerce Clause" - en.wikipedia.org/wiki/Wickard_v._Filburn – Drunk Cynic Feb 28 '17 at 1:41
  • and that wickard filburn is like mixed decisions by supreme court right? Another dice roll and it'll crumble – user4951 Feb 24 at 7:10

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