Expect Federal Fast Talking About CO and WA to Start Soon

Not a day has passed since legalization initiatives passed in two states, and ominous words have already been spoken. According to CBS, “[d]rug laws remain unchanged following passage of marijuana ballot initiatives“:

“The department’s enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiatives and have no additional comment at this time.”

I haven’t seen the statement on the DOJ web site yet. Perhaps it’s only been sent to media outlets. Colorado’s governor, meanwhile, hopes to talk to US Attorney General Eric Holder as soon as this week, according to the Denver Post.

Gov. Hickenlooper and CO Atty. General John Suthers both have said they intend to respect the will of the voters. But if the feds tell them that Colorado can’t do this, that would be a convenient answer for these officials who probably don’t want the trouble, especially when a little time has gone by and the spotlight on them over the amendment is a little less intense. So far DOJ’s statements as well as Hickenlooper’s sound accurate to me, to the extent that I’ve studied them. But it’s important to be prepared to communicate a factual understanding of how the law works, in the event that federal or even state officials attempt to obfuscate.

As a CNN legal analyst this morning commented (email or post if you know his name), federal law toward marijuana, and state law in Colorado and Washington (as well as all medical marijuana states) are different. But that doesn’t necessarily mean that they “conflict.” Specifically, it doesn’t mean that they have a “positive conflict.” If the state itself were to sell or traffic in marijuana, that would be a “positive conflict” with federal law. But Colorado and Washington have no obligation to enforce federal drug laws. The legal question as far as federal preemption is whether they can issue licenses to marijuana sellers that protect the sellers under state law.

My understanding of the law as well as that of colleagues I’ve spoken with is that this is not a positive conflict, as it does nothing to prevent the feds from making a drug bust if they choose to do so. It may well get tested in court. But it’s worth noting that in 16 years of state medical marijuana laws, no federal prosecutor in the country has ever tried to preempt state medical marijuana laws — they’ve busted dispensaries, but they have not tested the laws themselves in court. The same law is at stake with these legalization initiatives, with the difference being the scope of what they legalize and regulate.

My guess is that DOJ will face greater pressure to try to lawfully preempt one of these laws (as opposed to squashing them by force) than they have felt with state medical marijuana laws, even if they are doubtful of their chances for success. But time will tell. For us, the thing to remember — and to point out whenever it comes up — is that federal law and state law are “different” — they conflict politically, but that doesn’t mean they conflict legally. The feds don’t have a lot of incentive to acknowledge this, and as the statement shows, they can can be factual but still leave out that important point.

– Article originally from Stop the Drug War.



  1. Anonymous on

    Holder needs to smoke a fatty and stfu!

  2. Anonymouse on

    Very interesting point. Democratic governments are there to protect and serve the people. It is the will of the people that guides their direction and not the whim of tyrants acting as public servants.

    As you succinctly stated, dictators and tyrants of developing countries force their will upon the people and oppress dissenting voices. The Drug War is an act of oppression along the same lines of Assad’s regime that exists in otherwise democratic nations. The DEA an elite militarized global enforcement arm of the United States is much like the elite forces (terror squads) dictators use to impose their policies. The DOJ’s own actions (in the case against Marc Emery – a Canadian citizen, and Tommy Chong – U.S. citizen) are more akin to tyranny rather than justice itself (filling the drug war supported industrialized corporate prison system).

    The Nixon drug war began (specifically marijuana/cannabis) as a political tool to oppress the dissenting voices against the Vietnam war. Nixon’s drug war, later emphasized by Regan, is a destructive democratic policy that stands in conflict with the fundamental principals of liberty and democracy.

    The U.S. Justice department must decide on whether to continue their failed (often violent) policies against the peaceful (voter approved referendum) democratic will of the people. If they continue they will look very much like Assad and other dictators the U.S. government has opposed and overthrown.

    Obama stood upon the platform of moving forward. Continuing the failed policy of marijuana prohibition after the people of Colorado and Washington have stated otherwise is not a step forward…

  3. Mrs. Ratsrectum on

    De-fund by disallowing any federal money be spent on the enforcement of cannabis laws unless state or local authorities request it.

    Money will not be spent on asset forfeiture for cannabis. Money will not be spent by the IRS to make tax conditions more than for another kind of business, deductions allowed and what have you, and include calling off the banks from not accepting the cannabis community’s cash through the front door. No federal money will be used to close down a cannabis dispensary already located near a school or playground if an alcohol establishment is allowed the same distance, and if so any money spent must give financial incentives to the business to move to a new location which they both must agree upon. What if they don’t agree? That’s a matter for the locals, not the feds.

    Cannabis prohibition needs to be a victim of the sequestration cuts that need to take place to keep the U.S. from going off a financial cliff and further reducing the creditworthiness and bond ratings.

    I will be looking for legalization news occuring in The Netherlands, Germany, Christiania, Switzerland, and if the Swiss and Dutch will lighten up and let in foreigners. In Colorado and Washington front-door policy solved coffeeshops similar to those current Dutch coffeeshop owners advocate for solving the back-door policy there. Tourists will be emptying out their pockets to vacation in Colorado and Washington for the freedom. I will be looking in the news to see if like a biergartens the German part of Europe has weedgartens.

  4. Anonymous on

    Yes Yes Mr.Eric Holder we all know you are there and you and your police have a job to do.Just do like Assad does to its own people,send the airplanes and bombard them.I know if you had your way you would send B-52 over Colorado and Washington but my poor fellow your job is coming to an end soon along with the end of prohibition.