Pubdate: Sat, 24 Aug 2013
Source: Honolulu Star-Advertiser (HI)
Copyright: 2013 Creators Syndicate
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Jacob Sullum

HAVE FEDS GIVEN 'TACIT' OK TO MARIJUANA LEGALIZATION?

It has been nearly 10 months since voters in Colorado and Washington 
decided to legalize marijuana, and the Obama administration still has 
not said anything substantive in response, despite Attorney General 
Eric Holder's repeated promises that a policy will be announced "soon."

Does this long silence amount to "tacit approval," as a Colorado 
legislator who co-sponsored laws aimed at taxing and regulating 
marijuana recently claimed in an interview with TPM?

An unnamed Colorado official who has been involved in discussions 
with the Justice Department concurred.

"They're well aware of what we've been up to," he said. "I do think 
that it's fair to say that we have their tacit approval at this point."

The department has been kept apprised of the implementation process, 
the official noted, and so far no one has said to stop. Washington 
officials were more cautious.

"They've not indicated that they're going to try to stop us," a 
spokesman for Gov. Jay Inslee said. "We're operating as if this is is 
a go, and we haven't been told otherwise."

Yet both Holder and President Barack Obama have carefully avoided 
offering any assurances with regard to commercial production and 
distribution of marijuana, which is scheduled to begin early next 
year in both states.

"We've got bigger fish to fry," Obama told ABC News last December. 
"It would not make sense for us to see a top priority as going after 
recreational users in states that have determined that it's legal."

But that comment did not signal any change in policy, since "going 
after recreational users" has never been "a top priority" for the 
feds, who eschew penny-ante marijuana cases.

The real question, as I said at the time, is whether the 
administration is willing to tolerate state-licensed pot growers and retailers.

There is still plenty of time to say no. The Justice Department could 
wait until the stores start opening, then send letters to the 
operators and their landlords, threatening them with forfeiture and 
prosecution.

That method, which requires no actual raids or arrests, proved quite 
effective for John Walsh, the U.S. attorney for Colorado, when he 
decided that 50 or so medical marijuana dispensaries were too close 
to schools. At the same time, Walsh left hundreds of other 
dispensaries unmolested, and these are the businesses that will start 
serving the recreational market in January.

Which raises the question: Did Walsh run out of envelopes? Having 
discovered a virtually free way to shut down dispensaries, why did he 
let the vast majority of them continue operating?

And if those businesses are tolerable, will it make a crucial 
difference when they stop asking their customers for doctors' notes?

Another possible strategy for blocking marijuana legalization is a 
lawsuit claiming that it violates the Supremacy Clause because it 
conflicts with federal law.

But while TPM claims "the state laws directly contradict the federal 
Controlled Substances Act," that is not actually true, at least 
insofar as the laws specify the circumstances in which people can 
avoid state penalties for production, possession, or sale of marijuana.

The Supreme Court, based on an absurdly broad reading of the power to 
regulate interstate commerce, has said the federal government can 
continue to enforce its ban on marijuana even in states that allow 
medical use of the plant.

But that does not mean the feds can force state officials to help 
them, let alone compel state legislators to enact their own ban.

Under our federal system, states have no obligation to forbid 
everything Congress decides to treat as a crime.

To prevail with a Supremacy Clause claim, the Justice Department 
would have to show a "positive conflict" with the Controlled 
Substances Act, which does not exist merely because states decline to 
punish actions that remain illegal under the federal statute.

The difficulty of making such a claim stick helps explain why the 
Justice Department has never deployed it against state medical 
marijuana laws, the first of which was enacted 17 years ago.

Holder could nevertheless file a lawsuit as a delaying tactic, and he 
has at least four more months to do that before state-licensed pot 
stores are open for business.
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MAP posted-by: Jay Bergstrom