Tolerating Pot With a Frown

Why the feds had little choice but to let legalization happen


At the end of August, 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. A couple of weeks later, 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 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 Colorado and Washington have written for marijuana growers and sellers. 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 serve 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.

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  1. Tolerance is not an option.

    1. You got that right.And its a good thing too brcause most pot smokers I know don't want to be tolerated.They just want to be left the fuck alone.

  2. This is a consequence of the idea that interstate commerce is anything that is not interstate or not commerce. The risk here, to the Feds, is not a conflict with State laws. If a State doesn't prosecute, explicitly, then there is less conflict than if both are trying to prosecute. The problem is if the Feds prosecute that the Supreme Court might find the definitions of 'interstate' and 'commerce' in the dictionary should a case be brought on the matter.

    And any court ruling that involves "No really, it's written in English" dismantles massive tracts of Federal Law on the basis that it's illegal.

    1. The problem is if the Feds prosecute that the Supreme Court might find the definitions of 'interstate' and 'commerce' in the dictionary should a case be brought on the matter.

      Haha, good one! Yeah, that will stop the statists from stating!


      Has anyone ever tried to bring forward a "No, Really - commerce means commerce." amendment?

      1. Id they have they were doubtless shouted down by hacks from all parties, in deathly fear that they might be asked to give up their graft.

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  4. So many articles, like this one, talk around the federal resistance to marijuana reform, but do not look directly at it. If they did, the biggest question is - WHY do they fight against re-legalization?

    It's because the fraudulent prohibition is purely a pork barrel that renders nothing but destruction. Many powerful groups profit from the persecution of millions of American marijuana consumers.

    Law enforcement, prosecutors, prisons, the industries of alcohol, pharmaceuticals and drug testing/"treatment," banks and other corporations that launder black-market cash, bizarrely - the emerging medical marijuana industry - where it is no secret the majority of their customers are really recreational consumers, and the drug gangs themselves - whose billions of dollar buy influence everywhere.

    Once we can focus the light on these powerful parastical groups that are directing federal policy, we will truly end the monstrously destructive, counter-productive, freedom-strangling FRAUD of marijuana prohibition.

    It's way past time to dismantle the marijuana-prohibition-industrial-police-criminal complex!

  5. A bit ironic, posting this article. Denver.

  6. decided to legalize marijuana, the U.S. Justice Department responded with a memo

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