Pubdate: Fri, 07 Dec 2012
Source: New York Times (NY)
Copyright: 2012 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Charlie Savage

ADMINISTRATION WEIGHS LEGAL ACTION AGAINST STATES THAT LEGALIZED MARIJUANA USE

WASHINGTON - Senior White House and Justice Department officials are 
considering plans for legal action against Colorado and Washington 
that could undermine voter-approved initiatives to legalize the 
recreational use of marijuana in those states, according to several 
people familiar with the deliberations.

Even as marijuana legalization supporters are celebrating their 
victories in the two states, the Obama administration has been 
holding high-level meetings since the election to debate the response 
of federal law enforcement agencies to the decriminalization efforts.

Marijuana use in both states continues to be illegal under the 
federal Controlled Substances Act. One option is to sue the states on 
the grounds that any effort to regulate marijuana is pre-empted by 
federal law. Should the Justice Department prevail, it would raise 
the possibility of striking down the entire initiatives on the theory 
that voters would not have approved legalizing the drug without tight 
regulations and licensing similar to controls on hard alcohol.

Some law enforcement officials, alarmed at the prospect that 
marijuana users in both states could get used to flouting federal law 
openly, are said to be pushing for a stern response. But such a 
response would raise political complications for President Obama 
because marijuana legalization is popular among liberal Democrats who 
just turned out to re-elect him.

"It's a sticky wicket for Obama," said Bruce Buchanan, a political 
science professor at the University of Texas at Austin, saying any 
aggressive move on such a high-profile question would be seen as "a 
slap in the face to his base right after they've just handed him a 
chance to realize his presidential dreams."

Federal officials spoke on condition of anonymity because they were 
not authorized to discuss the matter. Several cautioned that the 
issue had raised complex legal and policy considerations - including 
enforcement priorities, litigation strategy and the impact of 
international antidrug treaties - that remain unresolved, and that no 
decision was imminent.

The Obama administration declined to comment on the deliberations, 
but pointed to a statement the Justice Department issued on Wednesday 
- - the day before the initiative took effect in Washington - in the 
name of the United States attorney in Seattle, Jenny A. Durkan. She 
warned Washington residents that the drug remained illegal.

"In enacting the Controlled Substances Act, Congress determined that 
marijuana is a Schedule I controlled substance," she said. 
"Regardless of any changes in state law, including the change that 
will go into effect on December 6 in Washington State, growing, 
selling or possessing any amount of marijuana remains illegal under 
federal law."

Ms. Durkan's statement also hinted at the deliberations behind closed 
doors, saying: "The Department of Justice is reviewing the 
legalization initiatives recently passed in Colorado and Washington 
State. The department's responsibility to enforce the Controlled 
Substances Act remains unchanged."

Federal officials have relied on their more numerous state and local 
counterparts to handle smaller marijuana cases. In reviewing how to 
respond to the new gap, the interagency task force - which includes 
Justice Department headquarters, the Drug Enforcement Administration, 
the State Department and the offices of the White House Counsel and 
the director of National Drug Control Policy - is considering several 
strategies, officials said.

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.

Another potential avenue would be to cut off federal grants to the 
states unless their legislatures restored antimarijuana laws, said 
Gregory Katsas, who led the civil division of the Justice Department 
during the George W. Bush administration.

Mr. Katsas said he was skeptical that a pre-emption lawsuit would 
succeed. He said he was also skeptical that it was necessary, since 
the federal government could prosecute marijuana cases in those 
states regardless of whether the states regulated the drug.

Still, federal resources are limited. Under the Obama administration, 
the Justice Department issued a policy for handling states that have 
legalized medical marijuana. It says federal officials should 
generally not use their limited resources to go after small-time 
users, but should for large-scale trafficking organizations. The 
result has been more federal raids on dispensaries than many liberals 
had expected.
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MAP posted-by: Jay Bergstrom