The Obama administration is strategizing how to fight legal pot in Colorado and Washington, reports Charlie Savage of The New York Times. While "no decision" is "imminent," Savage reports that senior level White House and Justice Department officials are considering "legal action against Colorado and Washington that could undermine voter-approved initiatives."
A taskforce made up of Main Justice, the DEA, the State Department, and the Office of National Drug Control Policy is currently considering two courses of action, reports Savage:
One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state. The department could then obtain a court ruling that federal law trumps the state one. A more aggressive option is for the Justice Department to file lawsuits against the states to prevent them from setting up systems to regulate and tax marijuana, as the initiatives contemplated. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be "severed" from those eliminating state prohibitions — or whether the entire initiatives must be struck down.
Option one could possibly mean that Obama would break a campaign promise he's already split hairs over: That his administration will not go after people who smoke marijuana for medicinal reasons. Savage makes it seem as if there are people in Washington who are more than happy to take that route: Apparently some law enforcement officials are so "alarmed at the prospect that marijuana users in both states could get used to flouting federal law openly," that they "are said to be pushing for a stern response."
UPDATE: Jonathan P. Caulkins, one of the co-authors of Marijuana Legalization: What Everyone Needs to Know, challenges my speculation that DOJ would necessarily go after a medical marijuana user:
Why would it have to be a medical user? The federal government could arrest someone possessing for personal use for non-medical reasons. Not everyone is a medical user. (In CO roughly 1 in 4 past-month users have a medical recommendation.) They could also arrest someone who is growing more than personal consumption amounts or selling. Granted, to arrest someone licensed to do that, they'd have to wait until later in 2013 when the licensing and regulatory regimes have been set up, but it may well be that it's the licensing of commercial for-profit production and sale that is really what the DEA et al would object to. After all, as far as I know, the Alaska SC rulings about what is protected under its privacy guarantees have not elicited an energetic federal response.
Duly noted! On Nov 12, Jacob Sullum answered the question, Can the Feds stop Colorado and Washington from legalizing pot?
According to the Supreme Court, a "positive conflict" exists "when it is impossible to comply with both state and federal law." But neither Colorado's Amendment 64 nor Washington's Initiative 502 requires anyone to grow or sell marijuana. One can readily comply with both state and federal law simply by choosing not to go into the cannabis business. Both laws are written so that they merely explain the criteria people must satisfy to avoid prosecution for marijuana offenses under state law. "Notwithstanding any other provision of law," begins the section of Amendment 64 dealing with marijuana growers and sellers, "the following acts are not unlawful and shall not be an offense under Colorado law." I-502 likewise says "the production, possession, delivery, distribution, and sale of marijuana in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana producer, shall not be a criminal or civil offense under Washington state law."
In other words, both laws define what counts as a crime under state law, a power that states indisputably have. "You're not actually creating a positive conflict with the federal [law]," says Alison Holcomb, director of the Yes on I-502 campaign, "because the federal government remains free to enforce federal law within the state, and you're not requiring anybody to perform an act that would require a violation of federal law. You're simply setting out what the rules are for avoiding arrest and prosecution under state law." Nor does either law compel state employees to violate the Controlled Substances Act by "possessing" marijuana for regulatory purposes. Under I-502, testing of marijuana will be handled by private laboratories. Amendment 64 likewise envisions "marijuana testing facilities" that will be "licensed to analyze and certify the safety and potency of marijuana." What about collecting tax revenue from marijuana sales? Legally, those provisions could be the most vulnerable aspects of these laws (although it looks like Colorado's pot tax may never take effect). Jonathan Caulkins, a drug policy expert at Carnegie Mellon University, tells Politico, "The argument has been made— and I've never heard anybody successfully rebut it—that the federal government can seize the proceeds of any illegal activity. By that logic, it could seize the tax revenues—even from the states." But in Marijuana Legalization: What Everyone Needs to Know, Caulkins and his three co-authors observe that although "it has been argued that the federal government could confiscate such revenues as proceeds of illegal transactions…as far as we know the federal government has not touched a penny of the fees and tax revenues generated from medical marijuana."
And here's Ethan Nadelmann, head of the Drug Policy Alliance, hoping against hope that Obama will get on board.
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