Feds Have No Viable Legal Strategy to Overturn Marijuana Legalization, Deputy A.G. Concedes


Senate Judiciary Committee

Testifying today at the first congressional hearing on marijuana legalization in Colorado and Washington, Deputy Attorney General James Cole conceded that the Justice Department does not have a solid legal basis on which to challenge those states' new laws. "It would be a very challenging lawsuit to bring," Cole told the Senate Judiciary Committee, because repealing state penalties for growing, possessing, and selling marijuana does not create a "positive conflict" with the Controlled Substances Act. Cole argued that the feds might be on firmer ground if they tried to pre-empt state licensing and regulation of newly legal marijuana businesses. But if such litigation were successful, he said, it could make the situation worse by leaving the industry unregulated. That is why the Justice Department settled on the approach summarized in the memo that Cole issued on August 29, limiting its enforcement efforts to cases that implicate eight federal concerns, including sales to minors, drugged driving, and diversion to other states. If Colorado and Washington do not adequately address those issues, he said, "We have reserved quite explicitly the right to go in and pre-empt at a later date." He summarized the department's policy as "trust, but verify."

Sen. Sheldon Whitehouse (D-R.I.) welcomed Cole's memo as a clarification of the Obama administration's shifting, inconsistent policy on medical marijuana, which began with assurances that state-legal suppliers need not worry about federal prosecution. Those promises of tolerance were followed by letters from U.S. attorneys who said compliance with state law would not provide protection to anyone but patients. Cole sought to gloss over the contradiction in a 2011 memo that said caregivers also are protected, but businesses serving patients are fair game. "This was a mess," Whitehouse observed, pressing Cole to say whether state-approved marijuana growers and suppliers can now rest easier. "As long as they are not violating any of the eight federal priorities," Cole replied, "the federal government is not going to prosecute them." In case those eight priorities do not leave enough room for prosecution, he added, U.S. attorneys may decide to target state-legal cannabusinesses for other, unspecified reasons, as the last sentence of his latest memo indicates: "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 serves an important federal interest." Although Cole said that "catch-all" is "not meant to swallow the entire memo," it is clear that prosecutors have a great deal of leeway in deciding whom to target. The real significance of this alleged policy shift will hinge on the actions of U.S. attorneys in states that allow medical or recreational use of marijuana, several of whom already have said the new directive will not affect their work.

In addition to promising prosecutorial restraint, Cole said the Justice Department is working with federal regulators to allay banks' fears of dealing with marijuana businesses, which often operate on a cash-only basis because financial institutions are reluctant to accept their deposits. "We agree it is an issue we need to deal with," he said in response to a question from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.). "There is a public safety concern when businesses have a lot of cash lying around." On a related issue, Cole denied reports that the Drug Enforcement Administration had warned armored-car services not to do business with marijuana merchants. "DEA was merely asking questions of the armored car companies as to what their practices are," he said, adding that the "questions" came before his memo. As for the inability to deduct business expenses on federal tax returns, another financial headache that marijuana enterprises face, Cole said Congress will have to address the problem through legislation.

The other witnesses at the hearing included King County, Washington, Sheriff John Urquhart, who supported marijuana legalization in his state. "My experience has shown me that the war on drugs has been a failure," Urquhart said. But he added that "I don't see a huge conflict" between state and federal goals, noting common interests in child protection, traffic safety, and keeping marijuana profits out of criminal hands. Kevin Sabet, director of the prohibitionist group Project SAM (Smart Approaches to Marijuana), warned that "we are now on the brink of creating Big Marijuana," which will make money by targeting minors and creating addicts. Sadly, he said, "American-style legalization is commercialization," which means cannabis-infused gummy bears that appeal to children and Internet advertising that will be seen by teenagers.

In response to such concerns, Jack Finlaw, chief legal counsel to Colorado Gov. John Hickenlooper, noted that the final version of his state's marijuana regulations, unveiled yesterday, includes a ban on TV, radio, print, and online ads for cannabis without "reliable evidence" that at least 70 percent of the audience is 21 or older. As I have explained, such restrictions are vulnerable to challenge on free-speech grounds. Finlaw conceded that "we have First Amendment issues to grapple with as we try to restrict advertising." Urquhart took a different tack, assuring Sabet that "big business is not going to take over the marijuana business in the state of Washington," because "there is no vertical integration allowed." In Colorado, by contrast, vertical integration is required, but that rule also supposedly will help prevent underage consumption.

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  1. He argued that the feds would be on a firmer ground if they tried to pre-empt state licensing and regulation of newly legal marijuana businesses. But if such litigation were successful, he said, it could make the situation worse by leaving the industry unregulated.

    Fuck If I were President “Single Issue Voter” I’d order my entire Justice Department to mount an all-out assault on these state regulation and licensing schemes…all of them, in every state.

    1. It wouldn’t embarrass you to publicly demonstrate that you haven’t any clue about the Constitutional limits of your powers? I’d think even “single issue” Presidents would want to avoid being laughed out of Court and ridiculed for utter stupidity.

  2. No strategy. I’m sensing a pattern here…

  3. What? Isn’t federal law supreme? Just send a SWAT team to the CO governor’s office.

  4. “we are now on the brink of creating Big Marijuana,”

    “Big Marijuana” wouldn’t stand a chance in an unregulated legal market.

    1. They could if they could keep the price low and the quality high through economy of scale.

      1. That worked out so well for “Big Tomato” and “Big Hay”.

        1. I don’t know about you, but I don’t put weed on sandwiches or feed it to herbivores. But that’s just me.

          Take beer for example. Sure there are tons of small breweries out there, but Big Beer with their consistency and economy of scale still have the vast majority of the market. Most people are not beer connoisseurs. They want something cheap that will fuck them up, so they buy the Silver Bullet or some other cheap commercial swill.

          Granted Big Beer exists in part because of prohibitions on homebrewing that existed until forty years or so ago that stifled experimentation and innovation, but the fact is that most people like a predictable branded product.

          I think Big Weed might stand a chance.

          1. The alcohol market is highly regulated.

            Also it is much harder to brew a good light pilsner than to grow decent weed.

            1. I dunno about that. I can brew a good light pilsner, but I’m no gardener.

            2. I’ve actually been working on a good light pilsner recipe as of late. Got the six-row and the maize even. Two batches last season came out quite good, and the next ones will be better.

      2. and paid a ton of money to lobbyists to get the congressmonkeys to bend over frontward…

        first, economies of scale? Big Sugar may have it, but the lobbyists are the ones that make sugar cost so much in the US…

        second example, Big Beer may have economies of scale, but craft brewers are multiplying like bunny-rabbits here in my new home state of NC, and often beating the hops off Big Beer.

        Lots of variables here…. I love freer markets!


  5. I have a crazy notion…

    How about the feds only do the stuff they are tasked with in that hundred year old, hard to read paper that was written by the old white slave owners who talked like fags?

    This way, you could actually comply with that 10th amendment thingy and you (the feds) wouldn’t need to worry your pretty little heads over the issue at all.

    1. How about the feds only do the stuff they are tasked with in that hundred year old, hard to read paper that was written by the old white slave owners who talked like fags?

      But it had “f”s without lines through them!

      1. In a CURSIVE, which is the means by which they kept the slaves illiterate.

    2. Thanks for reminding us that Woodrow Wilson wrote the Constitution.

  6. Hhhmmm, libertarians suddenly concerned about Federal authority, but ignore the issue of State pre-emption of Federal gun laws. Could it be that libertarians are really just concerned about pot and abortion rather than liberty in its whole?

    1. Could it be that libertarians are really just concerned about pot and abortion rather than liberty in its whole?


      1. But he is extremely concerned about immigrants, it seems. Project single issue stupidity much, Federale?

        1. Dude, get out his Google Plus profile:

          School: Attended IOBTC

          IOBTC stands for “Immigration Officer Basic Training Course

          He’s a fully deputized border cop.

          Think about that.

          1. Attended does not mean graduated. Think about that.

            1. You say “glass half full”; I say “glass half empty”.

              Whatever, he’s still a piece of shit.

    2. Huh, wha?

    3. You’re very, very stupid, aren’t you, American? Be careful that your stupidity doesn’t cause a fall that results in a coma.

      1. I think a coma would be even worse than death for Slappy, because the only thing you experience in a coma is blackness.

        1. Slappy doesn’t experience much, just BALL and GOOD and RAPE and HATE MEXICANS. Be nice to him.

    4. Yeah dude, the libertarian debate on guns is whether the Second Amendment extends to nukes. We all think there is far too much gun control here in America right now.

      1. “I don’t worry about the man who wants a hundred nukes, I worry about that man who only wants one” -(a very bad movie)

        It had to do with the probability that the person would use said nuke. My main issue with the ownership of nuclear arms is the question of “under what circumstances would it be justifiable to set that thing off?” because the amount of collateral damage will tend towards the absurd outside of very controlled regions.

    5. I agree with Federale. Jacob Sullum, who primarily writes about drug issues, owes him a handwritten apology for not riding Federale’s favorite hobbyhorse in this particular article. Clearly, Reason Magazine never mentions gun issues. If they were true liberty-loving patriots, they would do a cover story on the right to bear arms.

  7. I have a crazy notion…


    Didn’t you read that there is a risk marijuana might be unregulated. Unregulated ! How would that work in a free society, huh ?

    1. It’s…it’s unregulated right now. And I can get excellent weed.

      1. Exactly! How can we ensure safety unless everyone smokes the same low-grade generic rope that has a few extra ingredients provided by Congresses good buddies in the farm states?

        1. As a great American has said, you’re not free unless you’re asking permission and taking orders.

          1. “It used to be the boast of free men that, so long as they kept within the bounds of the known law, there was no need to ask anybody’s permission or to obey anybody’s orders. It is doubtful whether any of us can make this claim today.”
            -F. A. Hayek

  8. The other witnesses at the hearing included King County, Washington, Sheriff John Urquhart, who supported marijuana legalization in his state.

    Maybe he can manipulate Parliament through reporters and car bombings to make it happen.

  9. The DoJ should welcome states decriminalization/legalization efforts. The marijuana industry gets lured out into the open, registers itself, filling out all the forms and paying all the state fees for licensing, then all the feds have to do is swoop in at that point and arrest everyone for breaking federal law.

    1. Don’t forget asset forfeiture. I’m sure agents get bonuses commensurate to the value of property that they steal from citizens. They have an incentive to let businesses grow before swooping in and stealing everything.

  10. “Feds Have No Viable Legal Strategy to Overturn Marijuana Legalization, Deputy A.G. Concedes”

    They don’t have to overturn the laws to terrorize, raid, confiscate, and arrest. Why should they care about overturning the state laws, if it doesn’t limit their own action in any way?

  11. The DoJ should welcome states decriminalization/legalization efforts.

    More free online games at

    1. psh, at least womsom came up with his own one liners.

  12. I’ve been talking to Tom Angell of Marijuana Majority on facebook regarding his support for California AB 604 which if passed would require state registration of growers including mom and pop operations thereby placing a big fucking target on their backs. I keep asking Tom how he can make the comments about not trusting the feds then turn around and support a bill like AB 604 stating “there is a growing realization that robust statewide regulation is what it will take to get the federal gorilla off our backs.”

    It is starting to look to me now as if LEAP and the DPA have unwittingly I hope become pawns for Americans for Safe Access and others in the pockets of corporate interests in support of AB 604 too. They are now apparently ready and willing to throw mom and pop growers and patients in California under the bus. All for a few big fat juicy donations. It doesn’t matter that Mendocino County was once able to keep from providing registered grower information to the feds. As everyone should be clearly aware of at this point in time, ALL domestic electronic data is now available to the feds and the DEA.

  13. Let’s face it, I’ll bet the ASA would be willing to support large $20,000.00 and up non-refundable application fees just to apply to be a grower because it is all about the big boys for ASA now. The corporate interests are thinking if they can get more average people to become sacrificial lambs at the hands of the feds than there is a greater likelihood the feds will at least break down and allow their large grows. After all, they’ll be “tightly regulated”, right? (Cough, cough). It has the added benefit of course of wiping out the smaller competition. We’re seeing similar ASA type efforts to control the market by corporate interests in Washington and Colorado. Don’t be fooled, these measures like AB 604 aren’t intended to get the feds off our back, it is to get the feds off THE CORPORATE GROWERS backs and limit competition.

    Don’t get me wrong, I have a lot of respect for Tom Angell but bending over backwards for the feds is a waste of time and feeding our people to them through a registration system is bullshit!

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