Can the Feds Stop Colorado and Washington From Legalizing Pot?

After voters in Colorado and Washington approved the legalization of marijuana last week, Justice Department spokeswoman Nanda Chitre declared that "the Department's enforcement of the Controlled Substances Act remains unchanged." If so, the feds will treat state-legal sales of marijuana for recreational use the same way they have treated state-legal sales of marijuana for medical use: with  periodic raids, threats of forfeiture and prosecution, and various other forms of harassment that fall far short of closing down all the cannabis outlets. But the Obama administration also could try to avoid that embarrassing outcome through litigation aimed at preventing Colorado and Washington from implementing their plans to license and regulate the production and sale of marijuana.

In an interview with Politico, former Drug Enforcement Administration head Asa Hutchinson concedes that the federal government cannot force states to ban marijuana but argues that "you can go in and say the state does not have the authority to set up a regulatory environment." Hutchinson, who ran the DEA during George W. Bush's first term, envisions a lawsuit that will "have the courts decide finally that federal law trumps and that the state law violates the federal law." But even if we concede the validity of the Controlled Substances Act (which requires accepting an absurdly broad interpretation of the Commerce Clause), it is not clear how, exactly, the Colorado and Washington initiatives violate it.

"There are provisions in both of the initiatives that unambiguously violate federal law,” claims Kevin Sabet, a former Obama administration drug policy adviser. For instance, he says, "the fact that you can buy marijuana at the store" is "clearly in violation." Well, yes, the people selling marijuana definitely are violating federal law, but that does not make the laws under which they are licensed invalid. The Controlled Substances Act (CSA) suggests otherwise:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

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."

Likewise, as Brian Vicente, co-director of the Yes on 64 campaign, notes, the Justice Department has not used a federal pre-emption argument to challenge the licensing of medical marijuana providers by states such as Colorado, Maine, and New Jersey. "If there were a strong federal case to be brought," Vicente says, "I think it already would have happened." Holcomb says she sees the lack of federal litigation so far, despite the adoption of medical marijuana laws by 18 states (including Massachusetts, where voters approved an initiative last week), as "a hopeful sign." Since Colorado and Washington plan to implement their regulations during the next year or so, she says, there should be plenty of time to confer with federal officials and avoid a legal confrontation. "My hope would be that the [Obama] administration would choose to approach this as a policy issue, as a political issue," she says. "It's clear that nationwide public opinion is shifting quickly and dramatically on this issue....It would be more productive for the individual states, for the federal government, and for our neighbors to the north and south if we gave states leeway to try different approaches other than marijuana prohibition."

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  • ||

    Why can't they just do what they did with drinking age laws: threaten to withholding certain funding unless the states are in compliance with some arbitrary demands.

  • VG Zaytsev||

    That's what they will do, after they calm down from the collective hissy fit.

    The state's should tell them to fuck off but won't.

  • robc||

    You might be surprised.

  • Death Rock and Skull||

    You might be surprised.

  • Juice||

    Didn't the Obamacare ruling say that they can't do that anymore?

  • trig||

    Thank you, I was just about to post the same thing... well there go your highway funds then.. from YOUR tax dollars. I can definitely see the state reps folding, but the populace might just be pissed off enough to tell the feds to go fuck themselves.

  • VG Zaytsev||

    Fascist Paul Gigot on one of the Sunday morning talk show said the the feds should overturn CO and WA legalization.

    So much for federalism from republican establishment douchebags.

  • ||

    There is nothing better for us than having the states and the federal government at odds. God I want to see some clashes.

  • Marshall Gill||

    The Founders intended that this should be so. When the States and the Feds fight over power, it leaves them with less energy to take it from the populace.

  • sarcasmic||

    Yeah. They were supposed to be at odds with each other in the Senate.
    Along came the 17th Amendment and the republic was transformed into a representative democracy.

  • Pro Libertate||

    That's what was supposed to happen until we went all populist, purged the country of any thoughts of secession, etc.

  • nicole just can't even!||

    Yes, the shitshow cannot be too big. And the tears of Obama supporters who thought he would change his tune in the second term...

    No, there will be no tears, but I will still enjoy hating them.

  • ||

    We have a unique situation here, in that the State Liquor Board is supposed to run the pot stores. We can see from CA that the state has no interest in protecting private suppliers, but when their own supply is threatened...I don't think the governor will take too kindly to raids on WA state-run property.

  • nicole just can't even!||

    Yes, I forgot that. Oh, the deliciousness of overreaching governments finally reaching into each other's pockets!

  • ||

    We couldn't ask for a better outcome. Frankly, my guess is that not only was having the Liquor Board run the stores a sop to the union (obviously), it was also a roundabout way of avoiding CA's problems and making it much more of an issue for the feds to raid. It's like saying "think VERY carefully, DEA, if you want to do this."

  • John Thacker||

    Also, the Liquor Board was bored after the privatization of liquor retailing.

  • nicole just can't even!||

    On the other hand, if that goes "well" for Washington, we're going to end up with MJ legalization folks demanding even more state control beyond the "tax it and regulate it like alcohol" (which, in most places, isn't actually sold in state stores).

  • Robert||

    That has a beneficial side effect. Are the people who handle the goods in those stores considered officers enforcing state law? If so, then under the federal CSA, they are allowed to sell it. The buyer isn't allowed to buy it (unless the buyer is also enforcing a state or local law in doing so) without federal registration, but officers, in the course of enforcing a law regarding controlled substances, are not required to register with DEA as distributors or dispensers of same.

  • Hyperion||

    ME too, I am all in for a really ugly fight over this. Might wake up some more reasonable folks. The sheeple will continue to not care about anything but getting more free stuff.

    This is going to be good.

  • sarcasmic||

    Too bad the constitution has been ignored with regards to the military.
    Once upon a time the States each had their own militias, and the feds called upon them when in need. As opposed to the standing federal military that we have now.
    Then the states could really duke it out! Oh well.

  • shamalam||

    Yeah, me too, Epi. If the feds coerce WA and CO by withholding highway funds, those states should respond in kind by harassing federal officials: parking tickets, moving violations, non-cooperation with federal officials, look at ways to withhold federal income taxes, etc.

  • Caleb Turberville||

    The DEA in it's Orwellian quest for control of our bodies and minds will never peacefully concede this issue to the states and the people. To do so would undermine the very foundation on which it was based all along. As long as it exists, expect the Feds to place barriers to Colorado and Washington.

  • Caleb Turberville||

    Exepct nothing short of an attempt to dissolve the state governments and place them under Reconstruction-like control from the military.

  • Hyperion||

    Good. The harder they try to reverse this, the harder they fall. Let them be at their absolute worst.

  • ||

    Prediction: Marijuana legalization is about where gay marriage was 15 years ago. So I predict that in about 10-15 years, we will have a president who will order the DEA to stop enforcing the prohibition on cannibis in states that have legalized it.

  • Hyperion||

    Was gay marriage voted legal by voters in 2 states, 15 years ago?

  • ||

    I'm thinking in terms of overall social acceptance of the idea. I think we're about at that point.

  • Hyperion||

    Sure, I understand that. But I think those 2 successful votes have put this on more of a fast track.

  • Randian||

    More than a few legislators had made or at least attempted to make it legal 15 years ago (DC, CA, HI).

  • Christ on a Cracker||

    Didn't President O. promise to do exactly that?

  • EDG reppin' LBC||

  • Ace Sullivan||

    see South Dakota v. Dole, 483 U.S. 203 (1987)

    http://en.wikipedia.org/wiki/South_Dakota_v._Dole

  • Randian||

    But see NFIB v. Seblieus, which puts the use of funding as a stick into question.

  • Ace Sullivan||

    we'll see whether The Man tries to 'encourage' or 'coerce' WA and CO into giving up the dope.

  • R C Dean||

    Randian, Roberts was pretty clear in NFIB that the feds are perfectly free to continue using highway funding as a stick to beat the states with.

  • pmains||

    English democracy did not happen because of peaceful demonstrations in the streets, petitions to understanding sovereigns or even bloody civil war (although royal authority was diminished by the two English civil wars and the Glorious Revolution). The House of Commons came into being as a more efficient way to request money from the populace. In medieval England, a king had to live off of his own income. If he wanted to raise more money, he would go to his barons, who would go to their vassals and so on. It wasn't quite consensual, but there was always the threat of an uprising by either the peasants or the barons. Eventually, the king realized it was easier to seek direct authorization to tax from representatives of the people.

    Today, we've turned that formula on its head by declaring taxes to be the price we pay for civilization. Tax revolts are considered unthinkable because, well, we get to vote and that should be good enough.

  • pmains||

    And I lost my train of thought a bit there. South Dakota vs Dole illustrates how we've inverted the system of taxation. Government takes money from us with impunity and then uses the ill-begotten money to bribe us. And we wonder why we're moving toward a more statist and less free society.

  • ||

    Today, we've turned that formula on its head by declaring taxes to be the price we pay for civilization.

    We are forced to pay taxes because we are not yet living in a civilized society.

  • Hyperion||

    The best we Ls can do for WA and CO is tell them they have our support, whatever that means, and hide your family pets now.

  • Randian||

    Unless the DEA is going to grow by tenfold, the Feds have no chance in winning this.

  • Hyperion||

    I've already said that they have no chance of winning this even if they spend 100% of the federal budget on it.

    But they sure as hell are going to try, and the epic fail on their part is going to be very entertaining.

  • sarcasmic||

    What do you mean? They don't have to win by enforcement. They just have to win in the courts. Supremacy Clause and all that.
    The states want a cut. As long as the federal government wins in court, they can't tax illegal activity. The DEA wins without adding a single enforcer.

  • Hyperion||

    They will lose this, watch and see. When they don't, I will say I am wrong.

  • sarcasmic||

    You have more confidence that I do.

  • Hyperion||

    I know that, and maybe I am wrong. But I hope that I am right.

  • sarcasmic||

    I'm with George. "Fuck hope."

    http://www.youtube.com/watch?v=4W9Cs6KPTus

  • Rights-Minimalist Autocrat||

    He's made his decision; now let's see him enforce it. Or something.

    Are the federal courts going to issue arrest warrants for governors who fail to comply? That would also be interesting.

  • sarcasmic||

    You assume that governors would refuse to comply with federal courts.

    I don't give them credit for having the balls.

  • Rights-Minimalist Autocrat||

    That was implied when I thought it. I probably should have explicitly said it.

  • Robert||

    What if the feds won this case in court, saying a state can't license to private parties the right to sell controlled substances for purposes other than those that agree with the feds? Then, other than abolition of the program, the remaining choices are:

    (1) distribution by state or local gov't (under the enforcement officer exemption)

    (2) total laissez faire at the state level!

    We know that the states are not required to have laws on this subject. In fact, the most immediate effect, were the feds to win an injunction against a state for such a licensure arrangement, would be that the penalties in the state law for license violations or failure to be licensed would be off the books!

  • sarcasmic||

    The federal government is broke, and the War on Drug Users is expensive.
    There is no way that the stolen property comes close to covering the cost of stealing it.
    However, it does have a powerful lobby.
    Prisons, treatment, enforcement, lawyers, testers, the list goes on forever.

    Will they finally decide it isn't worth it, or will they go full retard?

    Hmm. I'll put my money on derp.

  • Hyperion||

    Full on retard, because they are already there. But that won't stop the WOD from being an even bigger failure.

    I was walking through the living room a few days ago and my wife was watching a news channel out of Sao Paulo and I happened to take a glance at the TV. All of these people were running in the streets. I was like, wtf? I didn't know they had running with the bulls in Brazil, where is the bull?

    Then my wife explained to me that they were running from the police, who were trying to catch them and force them to go into drug treatment because they were all holed up in some sort of Opium den like place in the favela where everyone just sits around getting high all day. It seems like they don't want to go into one of these court ordered treatment programs anymore than they wanted to go to jail before simple drug posession was decriminalized. But trafficking is still very much illegal and the violence between rival drug cartels and the police has been escalating to a serious degree.

    The WOD is a failure, everywhere.

  • Hyperion||


    Sao Paulo WOD

    Also, Brazil has some of the strictest gun control laws on the planet. So apparently gun control doesn't work either. But, double down on what is not working seems to be the current consensus among governments everywhere.

  • sarcasmic||

    The WOD is a failure, everywhere.

    Is it?

    If the intent is to create criminals where criminality doesn't really exist, and to give authoritarians an excuse to expand their ranks and upgrade their equipment, then I'd say it's a raging success.

    It has created more criminals than anything I can think of. Even more than Alcohol Prohibition since the WOD is international.

    It is an international success at creating criminality and an excuse for organized violence to quell it.

    It ain't going away.

  • ||

    you are right in your analysis, but it IS going away. already, with MJ , it HAS to a large extent been going away.

    penalties received are way way way less severe than they used to be. in many states, we have had decrim for years and even de facto near legalization.

    nobody who smokes pot (prior to passage of legalized pot of course) in king county WA has had ANYTHING TO fear from law enforcement for doing so, apart from very minor penalties, like a $100 fine. it's been de facto decrim for years.

    the war on MJ is already going away. when penalties are substantially less strict than they used to be, that is all the proof you need. and now, we are seeing one step further - to legalization.

    imo, we will also see some harm reduction in the "hard drugs", but i;m not saying that heroin will become LEGALIZED. but with MJ it will be in more and more states

    the WOMJ is over. people just don't realize it yet

  • The Late P Brooks||

    I suspect there will be "intense private negotiations" with the governors resulting in a compromise in which federal funds continue to flow, and marijuana does not.

  • ||

    willing to bet on that?

    i see the same cynicism i ALWAYS see here - note tht after we legalized mj there were few to none celebratory posts. reasonoids feel more comfortable lamenting "woe is me. i'm so oppressed" than ever celebrating freedom's advance.

    i will bet that recreational mj will succeeed in WA state. period. the feds , after a brief period of wanking are going to back off and marijuana will remain legal and available in WA state

    the feds are NOT going to win this battle.

  • sarcasmic||

    How can state governments take in revenue from activity that is prohibited under federal law?

    The states will lose.

  • ||

    again.

    WILLING TO BET ON THAT?

    ill bet that after a 2 yr window (give things time to settle down,for WA to establish good distribution channels etc.) recreational pot will be freely available in WA state and within months of passing this law , scores of thousands of people will be smoking pot pursuant to this law and thumbing their noses at the feds.

  • sarcasmic||

    WILLING TO BET ON THAT?

    Yes. Twenty bucks.

    *shakes*

  • sarcasmic||

    Hmmm. I wonder. If the states could make more money off taxing and regulating legal marijuana than they would lose from the federal government cutting them off... Hmmm.

  • ||

    Then the federal government would raise the ante on how much money they would withhold.

  • ||

    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.

    Ummm, my understanding is that Washington state is required by this initiative to go into the cannabis business, and no one else is legally allowed to do so. So, this creates conflict with federal law, with WA state government employees in open violation of federal law (assuming the Liquor Control Board actually gets the regulations written and the state government starts implementing their legal monopoly stores.)

  • Robert||

    I don't think that's a problem as long as the WA state employees selling it are police, i.e. as long as they have enforcement authority over what they're selling. For instance, they'll enforce the law against selling it to those under age. That makes them officers enforcing a state or local law regarding a controlled substance, which means that under federal law, they're allowed to sell it without registering with DEA. That's how the cops are allowed to conduct sell-and-bust operations; if they had to register with DEA -- and that's a public record -- then it would make sell-and-bust impossible, because anyone could look up their dealer to see if they were cops.

  • Robert||

    So actually this mean's Wash.'s scheme has a better chance to survive the feds than does Colo.'s. See? Sometimes it is better to have the state involved! ;-)

    Of course Federal DEA could camp outside the store and confiscate everybody's purchase. They may try doing that on a rotating basis, if they have enough agents to cover every store once in a while. They may even try some petty prosecutions of buyers, but obviously they don't have the resources to do that to many.

  • Tulpa (LAOL-PA)||

    Technically the president can't just decide not to enforce the CSA, since the Constitution requires that he faithfully execute the laws.

  • Calidissident||

    What about laws that aren't in compliance with the Constitution?

  • sarcasmic||

    With a creative enough interpretation, any law can be found to be in compliance with the Constitution. You just have to find the right judge or lawyer.

  • ||

    lol. god knows we've seen that with obama and bush

    that aside, tulpa... the president CAN decide not to enforce the CSA. he will just be in violation of the constitution by doing so (arguably). so what? he can still do it.

    who is going to stop him?

  • pmains||

    I'm having trouble imagining how Tulpa might think this would work. Impeachment would seem the most likely candidate, but good freaking luck with that.

  • sarcasmic||

    that aside, tulpa

    lick it

  • pmains||

    Every administration has to order its priorities for investigations and prosecutions. What mechanism exists to force the president to investigate and prosecute drug offenders?

  • shamalam||

    Executive order to end federal enforcement of cannabis laws in WA and CO, ala Obama's mini DREAM act EO.

  • ||

    the feds are going to lose and they will give in before the defeat is too strong. local cops, local govt.'s are going to stand behind the will of the people in WA and in CO and we will win. the prez is not going to want to do battle with the people in these states. it's posturing and fluff.

  • sarcasmic||

    What happens when the feds withhold highway funds, or education funds?
    What happens when all those matching federal funds that come with state bonds are withheld?
    What happens when they threaten to withhold Social Security or Medicare?

    The states will cave.

  • ||

    no, they won't.

    again, place a bet. i have. are you willing to concede "i was wrong" when (say give a 2 yr window to let the clinics and distribution routes establish themselves) MJ remains freely and legally available in the states and the feds back off?

    i'm more than willing to concede error, but i am confident in my prediction

  • NL_||

    States could probably protect their taxes if they piled marijuana profits in with something else, like alcohol or retail sales. That would require the feds to conduct audits or investigations of each taxpayer to determine whether the taxes were from marijuana or from legal sales. It would be even stronger if they didn't issue special marijuana licenses (red flags to the feds for which vendors to target) but licenses or permits indistinguishable from some larger group selling legal wares.

    Ideally, of course, there'd be no licenses or taxes at all on the ways people choose to interact and cooperate. But failing actual freedom, I'd settle for some obstructionism. Also, it would be somewhat harder to re-criminalize marijuana if the list of sellers were indistinguishably intermingled with other retailers.

  • sarcasmic||

    Also, it would be somewhat harder to re-criminalize marijuana if the list of sellers were indistinguishably intermingled with other retailers.

    Yeah it would. Like anything else that is lucrative, the state no doubt would create a cartel at the wholesale level. Kill that cartel and the retailers no longer have anyone they can legally purchase from. *poof* it disappears from the shelves.

  • Robert||

    States already collect fees for license applications to dispense, possess, distribute, or mfr. controlled substances. Why is this any different?

  • Mike Parent||

    Before the Feds do anything, perhaps they should look at how many votes the President received in CO, and compare that to how many Yes Votes A64 received. This drug war and especially Marijuana prohibition have run their course. It's a fools errand who's time should be ended.

  • Robert||

    Another possibility is that DEA deems this an experiment, and licenses the sellers on that basis. Good like finding an institutional review board to sign off on the ethics of such an experiment, however!

  • Robert||

    Wait, there's another: the feds could deem this educational use of marijuana. No IRB approval needed for that.

  • sohbet||

    very super blogos thanks admin sohbet & sohbet odaları

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