Does the DOJ Have an 'Open-and-Shut Case' Against Marijuana Legalization in Colorado & Washington?


In a new Rolling Stone piece on "Obama's Pot Problem," Tim Dickinson observes that it is entirely in the president's power to refrain from interfering with marijuana legalization in Colorado and Washington:

If Obama were committed to drug reform—or simply to states' rights—he could immediately end DEA raids on those who grow and sell pot according to state law, and immediately order the Justice Department to make enforcement of federal marijuana laws the lowest priority of U.S. attorneys in states that choose to tax and regulate pot.

That probably won't happen, Dickinson says:

Privately, both drug reformers and drug warriors believe the Obama administration is likely to take Colorado and Washington to court to keep them out of the pot business.

But neither Colorado's Amendment 64 nor Washington's Initiative 502 requires the state to get into the pot business, and this is no small detail. As I explained last month, both initiatives were written to specify the circumstances under which people will be exempt from state penalties for growing, possessing, and selling marijuana—something states indisputably have the power to do. State officials will not be involved in growing, selling, or even handling marijuana; they will merely certify when growers and sellers have met the conditions to avoid prosecution under state law. Those growers and sellers will still be vulnerable to federal prosecution, however. Because Dickinson elides this distinction, he exaggerates the chances that the Justice Department could persuade the courts to rule that the federal Controlled Substances Act (CSA) prevents Colorado and Washington from legalizing the commercial production and distribution of marijuana:

Unfortunately for drug reformers, the administration appears to have an open-and-shut case: Federal law trumps state law when the two contradict. What's more, the Supreme Court has spoken on marijuana law: In the 2005 case Gonzales v. Raich contesting medical marijuana in California, the court ruled that the federalgovernment can regulate even tiny quantities of pot—including those grown and sold purely within state borders—because the drug is ultimately connected to interstate commerce.

In Raich the Supreme Court held only that the federal government can continue to enforce its ban on marijuana in states that allow medical use of the plant. That does not mean the feds can compel states to help them, let alone force them to enact or maintain their own bans. And contrary to Dickinson's implication, pre-emption by the CSA requires more than the sort of "contradiction" you have when a state chooses not to punish people for activities that the federal government continues to treat as crimes. It requires "a positive conflict" between state and federal law such that "the two cannot consistently stand together." The Supreme Court has said a positive conflict exists "when it is impossible to comply with both state and federal law." That is clearly not the case here, since anyone in Colorado or Washington can comply with both state and federal law simply by staying away from marijuana.

It is notable that in the 16 years since states began legalizing marijuana for medical use, the Justice Department has never tried to overturn those laws in court with a pre-emption argument, even though it has interfered with the distribution of cannabis to patients (which began in yet another state yesterday) in many other ways. Perhaps that is because, contrary to what Dickinson says, a pre-emption argument would be anything but an "open-and-shut case." Last month Alex Kreit, a professor at the Thomas Jefferson School of Law who has studied the issue, told the Drug War Chronicle "opponents of these laws would love nothing more than to be able to preempt them, but there is not a viable legal theory to do that." Yesterday The New York Times noted that Gregory Katsas, who headed the Justice Department's civil division in George W. Bush's administration, likewise "was skeptical that a pre-emption lawsuit would succeed."

The Justice Department may be mulling a lawsuit, and it may, as Dickinson's sources suggest, end up filing one. But that does not mean it will win.

A brief co-authored by Kreit addresses the pre-emption issue in more detail.

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  1. Why is Bill Cosby holding that pet hair remover over his doll collection humidifier?

    1. Why is Bill Cosby holding that pet hair remover over his doll collection humidifier?

      First off, it’s called a “lint roller.” If you’d ever put on a uniform in defense of freedom, you’d know that. Second, that’s clearly Tiger Woods, age-progressed to his early 50’s. Also, modern dolls do not require humidification.

      1. If Barack Obama had a son would he look like Tiger Woods?

        1. With really giiinormous ears!

  2. The Supreme Court has said a positive conflict exists “when it is impossible to comply with both state and federal law.” That is clearly not the case here, since anyone in Colorado or Washington can comply with both state and federal law simply by staying away from marijuana.

    I’m not so sure. I haven’t done a lot of work on federal/state preemption, but there are a couple of things to throw in the mix here:

    (1) The “dormant” Commerce Clause, under which federal regulation of a given area of commerce pre-empts state regulation regardless of whether there is a conflict. Its generally applied, if I recall, to strike down state laws that impose burdens on interstate commerce. How it might apply here, I couldn’t say (its a convoluted doctrine), but its in the mix.

    (2) I’m not so sure that the ability to simply not engage in the regulated activity is enough to make the conflict disappear for all purposes. If that were the case, then very (very) few conflicts would ever arise. The conflict is still there, arguably, for those who do engage in the regulated activity, and I suspect that’s enough.

    1. 1) I’ve never seen a dormant Commerce Clause case that didn’t involve the Court striking down State A’s attempt to favor businesses in State A or to disfavor non-State-A businesses. Isn’t it basically just the Free Trade Zone Clause?

      2) Well, there’s a “conflict” in the sense that states are refusing to play along with Congress’s wishes. However, the states aren’t declaring that it’s now federally legal to smoke weed, they’re just removing state laws that could be stacked on top of federal law.

    2. Try this on the conflict issue:

      Federal law prohibits trafficking in marijuana. The state law does not require trafficking in marijuana, so it does not conflict with federal law. The state law merely imposes requirements on those who wish to do so without breaking state law, and does not impede or interfere in any way with the application or enforcement of federal law. Thus, no conflict.

      Contrast this with an actual conflict: federal law prohibits disclosure of medical records for a given purpose without patient consent. A state law that requires disclosure of medical records for that purpose conflicts with federal law, and is pre-empted.

      The definition under HIPAA is “(i) a covered entity would find it impossible to comply with both the state and federal requirements; or (ii) the provision of state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of the law.” The latter is pretty broad, and if this kind of standard is applied to marijuana legalization, then it will be pre-empted.

      1. Bottom line: From what I can tell, pre-emption is a singularly messy and ad hoc area of the law, and anyone who says either side has a lay-down win is almost certainly mistaken.

        1. yeah, see the varied decisions on whether FDA warning labels and regulation pre-emept state tort claims for failure to warn. Ugh.

      2. “the provision of state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of the law.” The latter is pretty broad, and if this kind of standard is applied to marijuana legalization, then it will be pre-empted.”

        Yes, but has SCOTUS ever said that a state’s lack of a complimentary criminal law violates the Supremacy Clause? In this, it seems like the Fed would have to argue that the absence of a hypothetical provision of state law is an obstacle. I don’t see how an absence of such a law could be an obstacle.

        1. Yes, but has SCOTUS ever said that a state’s lack of a complimentary criminal law violates the Supremacy Clause?

          Not that I know of. But I could easily see SCOTUS ruling that states may not affirmatively license activities that are prohibited by the Feds. And that’s what the pre-emption argument would be about: not the lack of a criminal law, but the presence of a licensing/enabling law.

          1. Taken at face value I would call that ridiculous, but based on the absurd stretches the supreme court has made to support federal goals I am thinking the court will find SOME way they can strike down the initiatives – preemption or not. I mean look at the profound effect Wickard v. Filburn has had on the past 70 years… What rational person believes that something grown locally for personal consumption with no intention to be brought to market, let alone an interstate market, can be considered interstate commerce in the eyes of the law and thus regulated via the commerce clause of the constitution. It doesn’t have to make sense for the supreme court to make these kinds of decisions…

            1. It’s not considered interstate commerce. It’s considered to affect interstate commerce, and therefore regulating it regulates interstate commerce.

              But the affirmative licensing thig would be bullshit. When you need a license for a substance that’s both state & federally controlled, if you get the state license first, what is that but affirmative licensing that until the federal license comes thru is in “conflict”? Nothing in the Wash. or Colo. laws says the distributors shouldn’t also apply for their DEA license federally, and it can’t simply be presumed that they can’t get a DEA license unless they actually apply and get a negative response.

  3. State officials will not be involved in growing, selling, or even handling marijuana

    Uh, I thought our initiative in WA said that the State Liquor Board was going to take over the selling of pot. Am I wrong on this, Jacob?

    1. The Washington State Liquor Control Board is charged with regulating private retailers, not with selling pot itself.

      1. Well, that’s confusing, as that’s not the way I had understood it before. I had heard that the Liquor Board was going to distribute it the way that they used to distribute and sell alcohol exclusively. However, you’ve almost assuredly studied this more than me, so I’m going to defer to you on this.

        1. You’ve been harping on this for months. You got all our hopes up for a shootout between state and federal officials.

          1. I got my own hopes up too, dude. This takes the genius out of the initiative. I guess I was stupid for thinking they rigged this the smart way.

            1. It’d’ve been smarter than maybe you thought. State enforcement officers are allowed under the US CSA to distribute a controlled substance as part of their enforcement duties. And they’re not required to bust everyone who buys. So as long as the guy behind the counter is keeping unauthorized persons (such as those under age) from buying, it’s federally legal for hir to sell it.

        2. OK, Epi, do you want to take a mulligan on this?

        3. Yeah, it’s been discussed here up until the past day or so as if Wash. was going to have state stores. Commenters and/or bloggers must’ve jumped to a conclusion.

      2. The Seattle Times reported that the Control Board was going to have to “create a market from seed to stem” for Pot. I presumed this was Seattle Times reporter-speak, wherein the typical journalist believes that markets don’t exist until government entities create them. I admit I’m a bit unclear as to how Pot is supposed to be sold, but given that the Control Board was heel-marks all the way in releasing how liquor was sold– and instituted a 20% penaltax on all liquor sales (see, it’s not cheaper!), I wouldn’t be surprised if during the process, someone at a Control Board meeting simply raises up the flagpole the idea that the Board should create the stores and sell it itself.

        1. Which, for the reason I’ve laid out, is what I hope comes to pass.

  4. If Obama were committed to drug reform?or simply to states’ rights

    He’s committed to neither…

    1. The president opposes Drug Reform because he hates black people.


  5. Regardless of how this turns out, or how long it takes to resolve, I can see only good coming out of this. Funny how it takes an issue like this to get people thinking about federalism, states rights, etc.

    1. I can see only good coming out of this.

      Me, I see a Federal budget that expands the DEA by tens of thousands of agents, in a joint Team Purple Law & Order / Government Employment Expansion alliance.

  6. Marijuana is significantly milder, safer and less addictive than alcohol. So why aren’t we allowed to choose marijuana instead of alcohol?

  7. From what I understand the President has the authority to reschedule marijuana all on his own. Too bad Obama is a “Do as I say, not as I do” type of guy.

    1. No, he doesn’t have that authority. However, his appointees do.

  8. Au contraire, Jacob — the US Controlled Substances Act says that officers enforcing a state or local law pertaining to a federally controlled substance are exempt from the requirement of registering with DEA to distribute or dispense (or manufacture or possess) that substance. So if the state did get into the business of having its police sell-and-don’t-bust rather than sell-and-bust, that would make their action federally exempt. As long as there is some enforcement responsibility (for instance, making sure children don’t buy it) the sellers have, that is the fed-proof way to get legal pot sales. Because I raised the issue, the Colo. distributors are going to be deputized as peace officers, but I’m not sure that will fly. Having actual police or gov’t employees of some sort staff the stores would be incontrovertible, however.

    Of course the feds could still bust the customers. But I doubt they’d be interested in doing so.

  9. I don’t the The Black Messiah? has a good legal case. That wouldn’t stop Roberts from inventing shit up like he did with ACA to invalidate these laws. If Roberts does, so what? Any sort of case is going to take years to resolve. Once states and counties see the fiscal payoff either through getting taxes and/or saving $$ from not busting potheads (and in a future where $$ will be even tighter), I don’t think they are going to be want to start a big anti-weed holcoust.

    I could see states doing what Montana did when told they had to enforce speeding. when and if they did pull you over, they’d write you a $5.00 wasting resources ticket.

    But in the end, it doesn’t matter what The Black Messiah? or SCOTUS does. What is going on is bigger than lawyers.

  10. earned that one “Sharon Levy” cares more for boot licking than the Hip sohbet odalar? & cinsel sohbet

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