Marijuana

Tolerating Pot With a Frown

Why the feds had little choice but to let legalization happen

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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, since 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 pre-empted.

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, since 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 serves [sic] 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 half-baked.

NEXT: Brickbat: No Secrets

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  1. 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.

    While the latter is almost a certainty, I don’t think that a lawsuit would necessarily be ruled out just because it’s not a sure thing. After all, it’s no real skin of the Justice Departments nose. It’s not like they’re playing with their own time and money. Using taxpayer resources against taxpayers is a federal pastime.

  2. 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…

    Because prohibitionists are all about results? The drug war isn’t about stopping drugs; it’s about making money. It’s about padding a prosecutor’s resume or getting law enforcement overtime pay and arming them with the latest and greatest. It’s about treatment facilities getting a steady revenue stream from the state.

  3. I was at a conference in Bern, Switzerland, last week and struggling with my column. News of Russia’s proposal for Syria to surrender its poison gas was just breaking and changing every hour, forcing me to rewrite my column every hour. To clear my head, I went for a walk along the Aare River, on Schifflaube Street. Along the way, I found a small grocery shop and stopped to buy some nectarines. As I went to pay, I was looking down, fishing for my Swiss francs, and when I looked up at the cashier, I was taken aback: He had pink hair. A huge shock of neon pink hair ? very Euro-punk from the ’90s. While he was ringing me up, a young woman walked by, and he blew her a kiss through the window ? not a care in the world.

    Observing all this joie de vivre, I thought to myself: “Wow, wouldn’t it be nice to be a Swiss? Maybe even to sport some pink hair?” Though I can’t say for sure, I got the feeling that the man with pink hair was not agonizing over the proper use of force against Bashar al-Assad. Not his fault; his is a tiny country. I guess worrying about Syria is the tax you pay for being an American or an American president ? and coming from the world’s strongest power that still believes, blessedly in my view, that it has to protect the global commons. Barack Obama once had black hair. But his is gray now, not pink.

    YOU KNOW WHO.

    1. Observing all this joie de vivre, I thought to myself: “Wow, wouldn’t it be nice to be a Swiss? Maybe even to sport some pink hair?”

      Very easy to sport some pink hair. Not so easy to become a Swiss citizen.

      Not his fault; his is a tiny country. I guess worrying about Syria is the tax you pay for being an American or an American president ? and coming from the world’s strongest power that still believes, blessedly in my view, that it has to protect the global commons.

      Fuck this motherfucker, whoever he is.

    2. Speaking of Switzerland, from Thomas Sowell:
      Minimum Wage Madness

      Switzerland is one of the few modern nations without a minimum wage law. In 2003, “The Economist” magazine reported: “Switzerland’s unemployment neared a five-year high of 3.9 percent in February.” In February of this year, Switzerland’s unemployment rate was 3.1 percent. A recent issue of “The Economist” showed Switzerland’s unemployment rate as 2.1 percent.

      1. That low of an unemployment rate clearly shows that they hate the poor and don’t believe in social justice.

        Only a very high percentage of the population unemployed and on total state assistance can demonstrate that you have a government that truly cares about the poor.

        Also, the Swiss are racist.

        And they all have guns, so they obviously hate the children too.

    3. Holy shit. It’s real. I thought that definitely was the work of the Friedman Generator.

      1. LOL. You can never be to cynical with triple pulitzer prize winner Thomas Friedman.

      2. The only way to improve on the verisimilitude of the Friedman bot-eds would be the ability to suggest topics, keywords, or keywords to be used in analogies. Input “cashier”, “nectarine”, “pink”, “Syria”, “Assad”, and “Obama” into it, and the difference in meaning would probably be undetectable.

        1. You know how you can use the words pink, green, and yellow all in one paragraph when describing Microsoft phone support?

    4. NEEDZ MOAR MIXT METAPHORZ!

    5. Though I can’t say for sure, I got the feeling that the man with pink hair was not agonizing over the proper use of force against Bashar al-Assad.

      No; they’re agonizing over how to deal with the bullies who want what should be people’s confidential financial information.

    6. Though I can’t say for sure, I got the feeling that the man with pink hair was not agonizing over the proper use of force against Bashar al-Assad.

      Maybe he should have asked him, he might have been surprised. Debating American foreign policy is a national pastime in many European countries.

    7. I was at a conference in Bern, Switzerland, last week and struggling with my column.

      Now is the time in your life for knowing how to get things done, Tommy.

    8. Take up the White Man’s burden–
      Have done with childish days–
      The lightly proferred laurel,
      The easy, ungrudged praise.
      Comes now, to search your manhood
      Through all the thankless years
      Cold, edged with dear-bought wisdom,
      The judgment of your peers!

    9. Oh, Tommy. You can have pink hair. You can also not care about Syria. Because Syria only matters to dipshits like you and your president.

    10. Observing all this joie de vivre, I thought to myself: “Wow, wouldn’t it be nice to be a Swiss?

      Ah…poor Tommy….wrestling the woes of the world from his wifes mansion and slogging through the dense underbrush around 5-star resorts while lugging that heavy laptop.

      Better keep a close eye on him…he might just snap and shoot up a navy base.

    11. While he was ringing me up, a young woman walked by, and he blew her a kiss through the window ? not a care in the world.

      Observing all this joie de vivre, I thought to myself: “Wow, wouldn’t it be nice to be a Swiss? Maybe even to sport some pink hair?” Though I can’t say for sure, I got the feeling that the man with pink hair was not agonizing over the proper use of force against Bashar al-Assad. Not his fault; his is a tiny country.

      Hmmm. Let me see… my choies are (A): have pink hair and blow kisses at women, or (B): be a statist, worry and frown about what my great nation is going to do at a geopolitical level to to a country thousands of miles away, write op-eds encouraging the direction I favor, and spend my day obsessing about controlling multitudes of people about a cornucopia of issues day in, day out, forever.

      I assume that the people who choose (B) are not real fun to hang out with.

  4. Ha! Feckless Federales. Warms the heart, it does.

  5. the U.S. Justice Department responded with a memo that leans toward accommodation rather than confrontation.

    “A memo that leans toward accommodation”? FTS. Wake me when marijuana is *legal*.

  6. OT:They were civilians and contractors, just starting their day at a massive military compound that’s normally a bastion of safety.

    Oh for fuck’s sake! A government contract is now the “font of honour” that ennobles all who drink from it into the noble brotherhood of American knighthood?

    1. From later in the article:

      Witness: ‘He aimed his gun at us’ and fired

    2. At the risk of appearing insensitive, just *once* I would like to see some victim remembered as “a total asshole”.

      1. My friends and family are on notice that should the microphone ever be pointed at them, I am to be described as “a giant asshole” who they “always expected to climb a tower with a rifle”.

        1. Really? That’s awesome.

        2. As a fellow Chem E… and knowing truly what assholes we are ….my respect for you went up another notch.

          Now why aren’t you in there nailing the new bride??

    3. It’s obviously not a bastion of safety. Derp.

      1. No, but until now at least it was a bastion of the illusion of safety, and isn’t that what counts?

  7. “They had no viable way to stop it.”

    Yea, federalism?

    Or, they will get back to you when they figure out a way to crack down.

  8. Can’t wait to see how this turns out for states that “legalize” federally banned or regulated firearms.

  9. Oh, and too bad, but FUCK STARBUCKS.

    1. I prefer to fuck Starbucks baristas.

      But maybe that’s just me.

      1. I hear ya. Just disappointed at their CEO’s reversal on gun policy in their stores.

        1. The presence of a weapon in our stores is unsettling and upsetting for many of our customers.

          So is the presence of a child, so please leave your kids at home.

          1. Yeah, but guns can go off without any warning or action from the person carrying them. Kids never explode without an adult pulling the trigger.

      2. I really expected a better showing than that.

    2. Surely this will satiate the banners, and be enough to bring them back into the store, rather than boycotting. And surely it won’t piss off the gun folks into not visiting.

      Of course. sure.

      Apparently the banners have been doing this:

      Moms Demand Action, which was formed the day after the Newtown, Conn., school shooting, has been organizing “Skip Starbucks Saturdays” to urge the coffee company to ban guns at its stores. Participants take photos of themselves at competitors such as Peet’s that do not allow guns and post them online.

      From The Detroit News: http://www.detroitnews.com/art…..z2fFXlhgcN

      I take it that means they still go every other day. Must be a very effective boycott.

      1. If they didn’t make only coffee and overpriced crap, I would boycott them harder than I already do.

      2. Moms Demand Action

        I had no idea that Moms ever demanded any action.

  10. I, however, am not tolerating the lack of AM links

  11. Starting to look like Reason is leaning toward tolerating MJ, if you catch my drift ….

    1. I know, those left-wing hippies. Don’t they know you can’t drug legalization AND a welfare state? Pick one or the other.

  12. Is my browser acting up, or have the AM Links not shown up yet?

  13. Where’s the 9:30 links?

    1. That’s 9:30 Central, bud.

      1. The links show up at 9:00; 9:30 in Newfoundland.

        1. What the hell kind of crazy place has a time zone half an hour off?

          I thought sarc was making a joke about them always being a half hour late, so I was continuing it.

          1. I love Newfoundland. It’s so quirky. Who would believe that people who live on an island in the North Atlantic don’t know how to cook fish without a deep fryer?

          2. Nepal is 15 minutes off standard time zones. UTC+5:45, if memory serves.

            1. 15 minutes? I have to retract my previous interventionist stance. Bomb them. Bomb them back to a time before clocks.

              1. Not sure about this one. Well look, I’m willing to compromise. We bomb Canada first, I can overlook wiping Nepal off the face of the Earth. Deal?

          3. Australia and India and several other places do it too.

    2. Time to send the intern to the farm with L**Y

  14. Say what you will about Reason, at least their trains don’t run on time

  15. My morning routine is now completely messed up. Damn you, Reason!

    1. Damnit, I can’t do work this early…

    2. Drink some coffee, it’ll all work out.

      1. plus I have a 9:30AM meeting…

  16. IIRC, these, um, delays never happened when LS was at Reason.

    1. The delay is being used for proofreading.

  17. The best Chinese mispronunciation of English technical term I’ve heard for a while:

    “Hate Exchanger”

    1. “I was doing the engineering work on the new Women’s Studies building…”

    2. You mean *Australian* mispronunciation, Meat?

      1. Well this particular one was done by one of my Chinese colleagues on a conference call this morning.

    3. If this is when you do productive work to exhaustion while building up hate for your professors in engineering school, I agree completely. One semester of grad school took all of my aspirations and traded them for hate of professors.

  18. I’m gettin’ REAL TIRED of you ducking me, Morning Links

  19. Don’t tell me the Reason interns have already collapsed from exhaustion. WHERE ARE MUH LINKS? This would never happen if TOP MEN were in charge of morning links.

    1. WHERE ARE MUH LINKS?

      Right next to your Obamaphone?

    2. Next to your MTV?

    3. If by “Top men” you mean “bots”, I agree.

  20. Where’s the Morning Links Lebowski?

    1. Hey, nice marmot

      1. Not weird enough. My computer has a problem posting links, but Youtube’s Forbidden Planet soundtrack is a better time killer.

    1. And here’s one for you.

      Or at least, for your mother-in-law.

      1. I think Gott is a lot bigger in Germany than Czechia.

        1. Nobody ever accused the Germans of having good taste.

  21. CANCAH MAH SUSSCRISSEN

    1. Fluffy! When did you move out of Vermont? It must have been a while ago to develop this new accent.

      1. Wait, Fluffy’s Kanadan? From Kanadia? Am I in Bizzaro World?

  22. I saw the “best” minds of my generation destroyed by madness, starving hysterical naked,

    dragging themselves through the hit & run streets at dawn looking for an angry fix,

    1. Sure, get all literary on us.

      1. You call that Beat crap literature?

        1. As long as people insist on foisting the Bronte sisters off as literature.

        2. Isn’t that from The Simpsons?

    2. Speaking of dragging through the streets looking for a fix, did ya see this?

      1. Woo-hoo! I’m moving!

    3. You sir are no Carlo Marx…he had larger prosthetic breasts.

      1. No one has larger prosthetic breasts than SugarFree.

        1. I’m like a on-rushing train of giant chicken cutlets.

  23. Police: Eagles tunes lead to bread knife brawl

    When police talked to the victim, he said he had been listening to The Eagles when Bader told him that she did not want to hear the classic rock band’s songs. So the man told her to shut up, the report states.

    Bader responded by allegedly getting a 14-inch serrated bread knife and swung it at the man repeatedly, the report states. The victim wrestled the knife away from Bader, but she came back with another knife before the victim could run and lock himself in the bathroom.

    I feel the same way about the Eagles

    1. I like the Eagles.

      Listening to Justin Bieber should be grounds for involuntary commitment and eventual termination.

    2. “GET OUT OF MY PEACEFUL CAB!”

  24. Why Gen Y is unhappy. With pictures (and unicorns) for the slow ones!

    http://www.huffingtonpost.com/…..30620.html

    Answer: They are pussies

    1. Generation Y, the generation born between the late 1970s and the mid 1990s.

      I thought it was Millenials that were born in the range of 1990. But the whole concept of these generations is stupid. People born in 78 do not have much in common with people born in 94. At most a generation should be like 10 years, but that doesn’t work well either because everyone has a different point to go 5 years on each side.

      1. Agree. It’s all media marketing. The article talks about kids raised by baby boomers raised by WW2 vets. I think I’m a Gen Y, except my dad was in WW2, so not everybody fits their neat little mold.

        1. Oops. I’m Gen X, not Y. I’m old now, not young and hip.

      2. The whole idea is stupid except from the point of view of a particular individual. People are born more or less continuously.

        1. That was a much better way of stating my point.

  25. Caution, Obama fluffers at work:

    http://www.politico.com/story/…..ml?hp=t2_s

  26. Jacob Sullum Explains Why the Feds Decided to Live With Marijuana Legalization

    Let’s not get ahead of ourselves.

    1. MJ prohibition is effectively over. It’s just going out with a whimper instead of a bang.

  27. They had no viable way to stop it

    They have no viable way of stopping anything when a significant enough number of Americans don’t want them to stop it. If that were not a fact, alcohol prohibition would still be in effect and no private citizen would own a firearm.

    1. No no child, you see you are too stupid for these rights and just don’t know what is best for you. We are working on that, Constitution be damned!

  28. my classmate’s half-sister makes $72 every hour on the internet. She has been without a job for eight months but last month her payment was $16159 just working on the internet for a few hours.Here’s the site to read more……

    ——————-
    http://www.Rush60.com

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