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The Prospects for Federal Legalization of Marijuana

There are enough Republican senators from states where marijuana has been legalized: Alaska (2), Colorado (1), and Nevada (1) to tip the balance in the Senate on a bill to legalize Marijuana federally (or, if possible, at least some compromise that prevents federal law from being enforced in states that legalized).

The House? 26 Republican members hail from states with legal pot:

  • Alaska (1)
  • California (14)
  • Colorado (4)
  • Maine (1)
  • Massachusetts (0)
  • Nevada (1)
  • Oregon (1)
  • Washington (4)

With a split in the House of 239/193 (3 vacancies), the tipping point would be 24 members, which makes it close (and assumes that all Democratic members would vote aye while all non-legalization-state Republicans would vote nay).

Given that eight states have already legalized marijuana, 14 have decriminalized, and 29 have medical marijuana, it is inevitable that federal-level legalization will develop. The question is how close is the Congress from enacting that.

2018’s midterm elections could prove pivotal in the House for the election of a body with enough votes on the matter. You also can count at least four states considering legalization via ballot initiative (Arizona, Florida, Missouri, and Nebraska) plus three more medical initiatives (Missouri, Oklahoma, and South Dakota). Passage would add more representatives to the count.

But assuming it does not, the question becomes how much leverage the legal industries, both recreational and medical, have to get non-legalizing states’ members to cooperate.

For example, the banking industry would see benefits to a change in law allowing for the marijuana industry to participate in the regular financial system. Given that the industry is poised to be worth some $40 billion by the end of the decade, that’s a lot of transactions and contracts for various businesses to profit from.

These subsidiary businesses, which include those who are supply-chain for manufacture, distribution, and marketing of processed products, as well as out-of-state home-growing/horticulture suppliers, all have some level of sway over legislators.

It’s not clear what would happen today, much less in a year or two, if the Congress took up a bill on repealing federal sanction of marijuana. Which gets to the other hurdle: leadership. Speaker Ryan is unlikely to allow such a bill to come to a vote any time soon. The dysfunction in Washington means that there are a number of high-stakes issues currently under consideration, with deals to be made or not. That includes the basic question of funding the government.

Such an environment is not ripe for an issue like marijuana to come up, so it will likely take one of two things (or both): the midterms turning the House into an especially pro-legalization body that’s ready to act, or AG Sessions deciding to crack down in legal states.

Electoral Certainties

My 2016 election predictions.

Prediction for the election at the end.

In thinking about Donald Trump, the best analogy I can come up with is Prohibition (maybe that’s why people are drinking so much these days). Prohibition, the 18th Amendment, and the Volstead Act. Society had some problems, but rather than face them appropriately, folks railed to ban the drink instead. 13 years later, recognizing their grave mistake, they admitted their own fallibility and recanted. And drank some more.

That’s what Trump looks like to me. He looks like the 18th Amendment: an overt affront to liberty and justice to try to deal with a very select subset of problems. He’s a bullet that misses the mark but may well take off the side of America’s face.

Trying to deport over ten million people will not go well. It will hurt socially, economically, and spiritually. It will throw chaos far and wide as people, human beings, seek refuge from the grasp of the law just as under prohibition. It will raise prices and cause economic turmoil, as prohibition did.

Before giving my completely non-scientific, mathematically illiterate prediction for the 2016 election, it’s important to point out certainties that exist. Chief among these is climate change. While various sites and news organizations have polled who should or will be president, giving aggregated probabilities, we know with certainty that the world faces climate change.

While we don’t know how much the seas will rise, precisely, or just how fast it will happen, we do know that heat melts ice and oceans will rise. There’s nothing political about it. Your opinion doesn’t matter. It’s physics, and it’s going to make prohibition or foolish policies on trade look like they’re potholes while we ignore the ‘road ends’ sign.

It’s also clear, based on history and rhetoric, that only one candidate will even try to turn before we head off the end of the road. Hillary Clinton has modest plans, as Obama has had, but compared to the certainty that the Republican candidates find themselves utterly unable to admit that action is needed (you’d think with all their bravery in saying “Radical Islamic Terrorism” that they could say “climate change,” but they can’t).

So I predict with high certainty if we do not deal with climate change, fast and hard, it will deal with us.

I predict Hillary Clinton wins with either 307 or 322 electoral votes (depends on North Carolina).

In the Senate, I predict Democratic control with 51 seats (could be 52 if either NC or NH break a little harder for Democrats).

In the House, I predict a majority for the Republicans on the order of 15-20 seats.

Deeming Finalized

Some brief thoughts on the release of the final FDA deeming regulation.

The FDA has finalized their rule for pulling e-cigarettes into their regulatory grasp. Litigation has already been filed in response. How will it all turn out?

Nobody knows. It’s that simple. The rule itself has a lot of things that make it look like the FDA is twisting the knob to 11, if they can. But how it will end up remains to be seen.

For example, they may be trying to close over the nicotine-free liquid market with the vague phrase intended or reasonably expected. A court may push back on that.

For example, they may be trying to force a de facto prohibition on open systems, through a burdensome regulatory process that would require open systems to mix-and-match matrix-style until every new product would require every other product to be tested with it.

But what will happen? A black market? A return to smoking? We will see.

How does this magic phrase, “intended or reasonably expected,” work? You have a nicotine-containing liquid. It’s, under the rule, a tobacco product. You put it in a tank. Now that tank is a tobacco product. You attach a drip-tip to the tank. Now the drip-tip is a tobacco product. You screw on a mod to the tank. Now the mod is a tobacco product. You put a battery in the mod. Now the battery is a tobacco product.

But under the rule, if you change one and only one thing, you can strike the word tobacco out from the paragraph above. That one thing: the fact that the liquid contains nicotine.

Now, assuming that the liquid is not bathtub-juice, that the nicotine is of high purity, the actual performance and harm of the same device is unchanged whether there’s nicotine or not. Whatever harmful constituents exist in the nicotine-free version will be identical to those in the nicotine version. But the regulatory difference is enough to bring an industry to its knees, call its lawyers, for black markets to open up.

Should these devices, which people use to inhale a flavored vapor, be regulated? Yes. It makes good sense that they be manufactured to a standard, that the public be protected against adulterated liquids (regardless of whether they contain nicotine), and so on. But the whole idea that it should all hinge upon something that constitutes, at most, six percent of the liquid (in the case of some cigalikes)? Dumb as all hell.

And the fact that the regulatory framework for these devices and products include so much testing that you’d think they were capable of far more than merely heating a liquid to point of vaporizing it so people could inhale it. I mean, your kitchen on an average night produces more harmful and potentially harmful constituents than a heavy e-cig user will in a week or a month. Your car produces more in a few minutes than an e-cig user will in a year. And so on.

The FDA probably couldn’t see any other way. Hopefully the courts and congress will.