Pubdate: Sat, 21 Sep 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

FEDS DECIDE TO LIVE WITH POT BECAUSE THEY CAN'T STOP IT

Last month, 296 days after voters in Colorado and Washington decided 
to legalize marijuana, the U.S. Justice Department responded with a 
memo that leans toward accommodation rather than confrontation.

Last week, testifying before the Senate Judiciary Committee, the 
author of that memo, Deputy Attorney General James Cole, explained 
why the feds decided to live with legalization: They had no viable 
way to stop it.

Pot prohibitionists had urged the Justice Department to file a 
lawsuit aimed at pre-empting the new marijuana laws under the 
Controlled Substances Act (CSA). But even if we accept the 
excessively generous reading of the power to regulate interstate 
commerce that allows continued enforcement of the federal ban on 
marijuana in states that have legalized it, the CSA limits 
pre-emption to situations where there is "a positive conflict" 
between state and federal law "so that the two cannot consistently 
stand together."

As Cole explained, states do not create such a conflict merely by 
choosing not to punish marijuana cultivation, possession and 
distribution, because that does not stop the federal government from 
enforcing its own ban.

"It would be a very challenging lawsuit to bring to pre-empt the 
states' marijuana laws," he said.

Cole suggested the Justice Department would be on firmer ground if it 
sought to overturn the regulations that Colorado and Washington have 
written for marijuana growers and sellers, presumably because those 
rules suggest official approval. That's debatable. As Vanderbilt 
University law professor Robert Mikos explains in a Cato Institute 
paper published last December, "a positive conflict would seem to 
arise anytime a state engages in, or requires others to engage in, 
conduct or inaction that violates the CSA."

If state officials supplied medical marijuana to patients, for 
example, they would be violating the CSA, and the law establishing 
that program would be preempted.

But specifying the conditions for exemption from state penalties does 
not require anyone to violate the CSA.

Mikos concludes that Congress "has left (states) free to regulate 
marijuana, so long as their regulations do not positively conflict 
with the CSA."

Even if the Justice Department could prevent Colorado and Washington 
from licensing and regulating marijuana businesses, Cole said, that 
outcome would not necessarily be desirable, because it would leave 
the industry legal but unregulated.

Still, he said, "we reserve that right to pre-empt" should state 
regulation prove to be insufficiently strict.

Since Cole concedes litigation would be iffy at best, that seems like 
an empty threat. More likely is a crackdown featuring threats of 
prosecution and forfeiture against cannabusinesses and their landlords.

It would not be hard for U.S. attorneys to justify targeting 
state-legal growers and sellers, given the vagueness of the criteria 
Cole outlined for judging the effectiveness of state regulation. He 
listed eight problems that states will be expected to help prevent: 
sales to minors, diversion to other states, distribution of other 
drugs, cultivation on public lands, possession on federal property, 
violence or "use of firearms," the flow of revenue to "criminal 
enterprises," and "adverse public health consequences" such as drugged driving.

Just in case those "enforcement priorities" do not leave enough 
leeway for prosecution, Cole's memo adds that "nothing herein 
precludes investigation or prosecution, even in the absence of any 
one of the factors listed above, in particular circumstances where 
investigation and prosecution otherwise serve an important federal interest."

In short, the feds will prosecute state-approved growers and sellers 
whenever they think they have a good reason. No wonder several U.S. 
attorneys said the Cole memo would not affect their work.

But prosecution, like litigation, could make matters worse, even from 
a prohibitionist perspective. Should the Justice Department succeed 
in shutting down licensed and regulated suppliers, unlicensed and 
unregulated suppliers will be waiting in the wings: home growers in 
Colorado and medical marijuana collectives in Washington. Given the 
lack of appealing options, maybe it's not surprising that the federal 
response to marijuana legalization was in the oven so long yet still 
seems halfbaked.
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MAP posted-by: Jay Bergstrom