Have the Feds Given 'Tacit Approval' 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 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 commmerce, 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.

NEXT: MD Lawsuit Seeks Traffic Camera Data

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  1. I wouldn't even trust their written approval.

    1. ^^THIS^^

    2. What is this, entrapment?

  2. So on my drive to work today, I pass a person, in a full fursuit, just walking down the side of the highway.

    It was a blue bunny, I think, just sadly trudging along the shoulder. Had the head on and everything.

    1. did it tell you to kill?

    2. Was his name Frank and did he tell you the world was going to end in 28 days?

      1. That movies was terrible, and you're terrible for referencing it.

        1. So terrible it caused you to get your plurality wrong, it seems. Why don't you like ridiculous cult movies, Hugh?

          1. Someone doesn't sound very committed to Sparkle Motion, that's for sure.

          2. You just have to understand Epi. I'm not special like you. I live in the suburbs and commit myself to banal things like gardening and sparkle motion. I don't understand the profound beauty of time paradoxes or cellar door. My love is common, pudgy, and meaningless, while yours is special and magical because it's short and tragic. God, how can you even stand to communicate with a lumpen sack of mediocrity like me?

            1. A pimp's love is very different from a square...

            2. Hugh has a kiddie porn dungeon.

              1. What about the east wing?

    3. So did you guys go to a hotel or a rest stop?

    4. 1) I rode past too quickly, so perhaps he told me to kill, but I didn't hear it,

      2) No, it had a happy face, it wasn't Frank,


      4) I didn't have room on my motorcycle for anyone in a fursuit so we couldn't go to a hotel or anything like that, though I was wishing I could get a bj right about then...

      1. In hindsight, I wish I had a cheater bar or engine mount bolt or a maglight or something so I could have swooped by and cracked him in the back of the legs. Finally lived out my favorite parts of Road Rash.


        I would rather watch Will Ferrell and John C. Reilley act out some John/MNG slashfic than watch that movie again. Donnie Darko is a waste of...whatever the fuck they used to make it, 'cause it sure wasn't talent or ability.

    5. Am I the only one hoping the person in the fursuit makes it into a Warty Hugeman episode?

  3. They are leaving their intentions unclear because it allows them to do whatever the fuck they want later down the line. If the NSA scandals take all their attention, then they leave WA and CO alone and get credit from their braindead cheerleaders for being good on pot like Obama claimed he would be in campaign speeches. If they decide to get their thug on, they never said they wouldn't, so their braindead cheerleaders won't have to face any direct contradictions.

    It is, at its heart, a perfect example of the lawless and thuggish nature of this administration. By not saying what they will do, it leaves them free to do anything.

    1. Precisely this. Popehat's writeup on Holder's mandatory minimums memarandum explains why it's a) not so drastic a departure from the prosecutors' MO as lefty bloggers would have you believe, and b) in fact provides federal prosecutors more, not less, discretion and power over the lives of drug law offenders.

      In the same vein, the administration has played their cards tight to the chest because giving ground on specific policies locks them out of avenues for exercising discretionary power they'd rather not lose. "Tacit approval" is code for "do as you please until we're displeased." They haven't the philosophical consistency, or any consistency beyond brute exercise of power, to trailblaze a path to authentic reforms.

      Scummy powerbrokers, the lot of them.

      1. Arbitrary and capricious is no way to go through life, son.

        1. To prevail with a Supremacy Clause claim, the Justice Department would have to show a "positive conflict" with the Controlled Substances Act

          Suppose there were such a positive conflict but the Justice Department declined to show it? How is failing to faithfully execute the law any different when you execute faithlessly or fail to execute? In either case, it seems to me that it's a matter of the DoJ saying the law means whatever the hell they decide it means.

          Or what Dweebston said.

        2. Arbitrary and capricious is no an awesome way to go through life, son.

  4. Liberal Leader Justin Trudeau says he has smoked marijuana with friends since becoming an MP, and also revealed his late brother Michel faced a possession charge before his death in an avalanche

    1. his late brother Michel faced a possession charge before his death in an avalanche

      See what smoking pot can lead to, kids?

      1. Being Canadian? Yeah, it's fucking rough.

        1. And remember, folks: nicole knows. She lived among the wild Canadians for some time. She almost went native.

          1. Do they test your blood for poutine content at the border?

            1. There's a two-part test, first checking your ability queue propertly, and then your ability to shout "calice de tabarnac" in the appropriate accent.

              1. "Queue properly"? You mean shoving strangers as you push your way to the subway exit turnstyle?

              2. They should have held you back for using "queue." It's "line up" in America!

                THESE COLORS DON'T RUN!

                1. THAT'S MY POINT, FOOL! Also, people don't queue properly in the US.

                  1. You keep using that foreign word. I can only assume you hate America.

          2. Even I occasionally walk among them.

          3. you say that like it's a bad thing

          4. For the record, the only sense in which I "went native" is that I regularly went to Kahnawake to buy Natives, i.e., their brand of super cheap cigarettes.

            1. I'm still pissed they call their 2 dollar coin a "Two-ny" when "Doubloon-y" was just sitting there.

  5. Fist pretty much summed up why this is all bullshit and we shouldn't take their word for it, so I'll take this opportunity to comment on the Bradley/Chelsea Manning issue that I missed earlier.

    Does anyone have a problem with the fact that Bradley/Chelsea Manning is going to get much more sympathy for being transgender thane he would have for being a man who got 35 years in the stockade for telling the truth?

    1. Depends on how hot he/she is when all the transmogriphications are said and done.

    2. The same problem I have with people caring more about any KULTUR WAR bullshit than about total destruction of our liberties.

      Remember: this is what the politicians want and encourage. That the masses fight over idiotic meaningless bullshit and not pay any attention to the man behind the curtain and what he's taking from them.

      And it works.

      Manning clearly has some problems, and it seems he decided to have them in public while his 15 minutes lasted. It's not surprising, but it's unfortunate that it's going to overshadow the fact that he's been treated cruelly and unusually and the government just...did that, with no repercussions. Which means they can do it to any of us.

      1. I wonder if that was part of the deal. Apologize and blame it on your wacky transgenderism, and we'll take it into consideration in your sentencing. Only the mentally ill could conspire against the glorious state.

        I doubt attention had much to do with it, so much as 1) this is the first time in years where coming out as trans does not change her life significantly for the worse, 2) she probably had to make it public in order for it to be taken into consideration for prison arrangements, and 3) she's been tortured for 18 months, and psychological security-seeking behavior like this is a natural reaction to save what shreds of sanity she has left.

  6. Anyone see the resemblance to what they said about medical marijuana?
    But look at what they are doing to state legal MMJ providers in Ca. and elsewhere.
    Beware Colorado. It is undoubably their plan to let you spend millions preparing to implement your new law then bring the full force of federal power down on you as a example to other states that might dare to defy them.
    Expect them to sieze any and all tax revenues you might earn as well as every property of licensed growers and retailers.
    The duplicity of the Obama/Holder regime knows no bounds.

    1. As this state has been financed with Drug Monies, we hereby commence forfeiture proceedings against the States of Colorado and Washington.

      1. I personally cannot wait to visit the U.S. protectorates of Colorado and Washingtonia. It's like having a more easily accessible Puerto Rico

  7. "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."

    That which is not explicitly allowed is verboten.

    1. It is verboten to discuss what is verboten.

  8. They're just waiting for wealth to be generated so they can come in and steal it.

  9. I was over the speed limit when I drove to work today, and didn't get pulled over.

    Do I have the tacit approval of the police to speed, now?

    1. I was trying to think of a good parallel.


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