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Will Obama Go After Legal Pot in Washington and Colorado?

A near supermajority of American citizens believes the federal government ought to respect the states' new laws.

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By contrast, the Obama administration may attempt to actively prohibit states from allowing for the above-ground, licensed production and sale of cannabis by authorized proprietors. Justice Department officials could theoretically do so by either bringing a legal challenge against the states, by threatening local officials, or by proposing to withhold federal funding. But none of these actions are assured. Here’s why.

To date, the Obama administration has done little to interfere with the state-approved production and licensed distribution of medical marijuana in those states that explicitly license and regulate this activity — specifically in Arizona, Colorado, Maine, New Jersey, and New Mexico. (In recent days, some of the first state-approved dispensaries opened for business in Arizona and New Jersey. In coming months, licensed dispensaries are also anticipated to open their doors to the public in Vermont as well as the District of Columbia.) In Colorado – where the state has licensed several hundreds of cannabis dispensaries and oversees "seed to sale" regulations governing the plant’s production and distribution – federal officials have yet to either file suit or threaten any of the state regulators who oversee the program. In response to a lawsuit filed in 2011 by Arizona Gov. Jan Brewer, who sought to invalidate the state’s 2010 medical cannabis law, lawyers for the federal government affirmed that the administration had never engaged in such strong-arm tactics and did not intend to. 

The federal judge in the case agreed. She rejected Gov. Brewer’s legal arguments that the operation of state-approved medical marijuana dispensaries was preempted by federal law or put state employees at risk for federal prosecution, determining “[T]he Complaint does not detail any history of prosecution of state employees for participation in state medical marijuana licensing schemes [and] fails to establish that Plaintiffs are subject to a genuine threat of imminent prosecution and consequently, the Complaint does not meet the constitutional requirements for ripeness.”

A Maricopa County (AZ) Superior Court ruling from earlier this month further affirms that states possess the legal authority to regulate the legal distribution of cannabis, at least in some specific instances, without running afoul of federal anti-drug laws. In the case before the Court, White Mountain Health Center, Inc. v. Maricopa County, Judge Michael Gordon determined that the federal Controlled Substances Act did not preempt Arizona’s efforts to authorize “the local cultivation, sale, and use, of medical marijuana.” Writing for the Court, Judge Gordon declared that nothing in Arizona’s law circumvents federal law since Justice Department officials could still continue to locally enforce the Controlled Substances Act. In fact, Judge Gordon suggested that the new law “affirmatively provides a roadmap for federal enforcement of the CSA, if they so wished to” since the statute requires patients and proprietors to register their activities with the state. He concluded: “The Court rejects … arguments that the [law] violates public policy simply because marijuana use and possession violate federal law. Eighteen states and the District of Columbia have passed legislation permitting the use of marijuana in whole or in part. The Court will not rule that Arizona, having sided with the ever-growing minority of States, and having limited it to medical use, has violated public policy.”

Some legal experts, including law professor Robert Mikos of Vanderbilt University Law School, suggest an additional legal theory as to why Colorado and Washington’s proposed regulatory schemes may not be subject to federal preemption. Speaking at a recent CATO Institute sponsored forum, Mikos suggested that the newly enacted state legalization laws do not violate the spirit or the intent of the Controlled Substances Act because the federal law exists for the expressed purpose of limiting the consumption of certain substances by the public, particularly young people. One can argue that the proposed statewide regulatory schemes in Colorado and Washington – which impose age restrictions for buyers and limit sellers to those authorized by the state – are intended to serve a similar purpose. Further, the proposed state programs, “ do not stop federal authorities from sanctioning registrants.” Notably, Superior Court Judge Gordon specifically highlighted these arguments in his decision to uphold Arizona’s law and to reject claims that it positively conflicted with federal law.

 
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