Alternet: “Will Obama Go After Legal Pot In Washington And Colorado?”

  • by Paul Armentano, NORML Deputy Director December 19, 2012

    It has been nearly seven weeks since voters in Colorado and Washington made history, enacting at the ballot box unprecedented measures legalizing the adult possession on cannabis. Yet during this time, federal officials have largely remained silent.

    One week ago, US Attorney General Eric Holder cryptically told Bloomberg News that the administration will formally announce its intentions “relatively soon,” but added no further details. Most recently, on Friday, President Obama told ABC News’ Barbara Walters: “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal. … We’ve got bigger fish to fry.” Of course, federal officials do not target minor marijuana offenders now — so the President’s statement provides little clarity as to what actions the Administration may take going forward as Colorado and Washington begin implementing broader regulatory reforms, including measures to license proprietors to commercially produce and sell cannabis to adults.

    Today, in Alternet.org, I speculate as to what actions the Administration may take — and what actions they may not take — in the coming weeks as state lawmakers work toward the full implementation of Colorado and Washington’s newly enacted marijuana laws. An excerpt from this commentary appears below.

    Will Obama Go After Legal Pot in Washington and Colorado?
    via Alternet.org

    With public opinion firmly behind the will of the voters, is it realistic to think that the Obama Justice Department will take action to try and nullify Colorado and Washington’s legalization laws? It’s possible, but it may not be as likely as some think.

    For starters, states are not mandated under the US Controlled Substances Act to criminalize marijuana or to arrest and prosecute adult cannabis consumers and the federal government cannot compel prosecutors in Colorado or Washington to do so. The Justice Department and the US Drug Enforcement Administration could, theoretically, choose to selectively prosecute those individuals in Colorado and Washington who possess or grow quantities of plant that are compliant with state law. But such a scenario is hardly plausible. The federal government lacks the manpower and the public support – and therefore the political will – to engage in such behavior and this reality is unlikely to change any time soon. As acknowledged by former congressman and ex-DEA director Asa Hutchinson at a recent CATO Institute forum on the subject, the federal government never has prosecuted people for possessing an ounce of marijuana and it is not about to start doing so now.

    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. **AUTHOR’S NOTE: By contrast, the Justice Department has taken actions to aggressively close operations in California, Oregon, Montana, and Washington — though none of these states explicitly license dispensaries.**) 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.

    “No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree [by Arizona’s medical marijuana law],” he opined. “Instead of frustrating the CSA’s purpose, it is sensible to argue that the [law] furthers the CSA’s objectives in combating drug abuse and the illegitimate trafficking of controlled substances.”

    You can read the full text of my commentary here.

    22 responses to “Alternet: “Will Obama Go After Legal Pot In Washington And Colorado?””

    1. Ben says:


      “The Board of County Commissioners voted 4-1 on Tuesday to advance an ordinance that would prohibit the operation of recreational marijuana cultivation facilities, product manufacturing facilities, testing facilities and retail stores in unincorporated areas. The ordinance is scheduled for second reading and final approval Jan. 15.”

      – which effectively nullifies the tax benefit, as retail sales are illegal.

      – so, if people are allowed to possess it, but unable to legally purchase it, then:
      — either they buy it illegally, (which is a problem)
      — or they grow it themselves, (which is as unlikely as alcohol partakers homebrewing [which happens, but is rare compared to the number of partakers of beer])


      Our fearless Choom Gangsta is unlikely to stand for our rights, and as you can see in the article, our leadership in many levels prevents the will of the people.

      I look forward to the end of this ignorance, and to our nation profiting from cannabis. Its market isn’t going away, and the monies are still foolishly misdirected.

      Thank you, NORML, for educating us, and to my fellow readers, reach out to your Representatives.

      Reefer Madness should have been reasoned away long ago…

    2. HmmmSaysDavidHume says:

      Others can be hopeful. I am deeply troubled by the Feisntein news. She is hard line against any legalized access to cannabis. Still, this only indicates the seriousness of this movement. If all of us remain vigilant this is too little, too late. But belligerence is the certain reaction of those nearing defeat. This is simply an indicator to turn it up. Now.

    3. Anonymous says:

      The feds won’t do anything…

      Too many people in support of legalization.

      Too many folks would be extremely angry if they did try to step in as well… Probably not the best idea seeing how every American has been stockpiling guns for the past week, lol…

    4. Evening Bud says:

      So, the FED smack down the STATE, and upholds the LEGALITY of MMJ. What’d’ya know.

    5. RUT says:

      The proper classification of marijuana will end the threat of federal enforcement agains growers and outlets. Until this happens they are laying a vail of uncertainty over outlets and grows.This is a stalling tactic as the government can change like the wind on this issue. They are not correcting this major lie they have been telling about MJ classification meeting the criteria of a class I substance. this can be corrected with out much effort,it is science. Also the threatening of property owners who rent property to dispensary’s should be stopped. Talk about bullying!

    6. WISEMAN says:

      Whom works for Whom here ?

    7. dk says:

      I believe that if the feds try to come down on Washington and Colorado, it may well work to further advance the effort to legalize marijuana nationwide, perhaps even worldwide. Hardly anyone believes that ‘gateway’ nonsense anymore. Schedule One status is bogus and always has been. The lie is dead. Legalize pot now !

    8. charlie soroka says:

      I believe President Obama’s marijuana comments taken together with his actions thus far (regarding Colorado and Washington legal mj laws)pretty much give the citizens of Colorado and Washington the green light.
      Having said that, I am from Illinois and there is talk here since the election in the legislature about introducing a legalization bill next term (where democrats hold a super- majority when the new members are sworn in).
      While we are razor-thin-close to passing a medical mj law, (HB 30) I believe the election outcome combined with President Obama’s comments to Barbara Walters should take that over the top when HB 30 is voted on in our Veto Session.
      I believe doing favorable legislation here in Illinois would have far more effect than many other locales because of our location.
      Finally, however, what is most pressing is HB 30. Everyone should contact their legislators and ask them to vote Yes on HB 30 when we have our veto session at the beginning of the year.

    9. bongstar420 says:

      Obama’s comment is analogous to the medi stuff. Federal policy will to be to pursue large producers/manufacturers/retailers while leaving strict consumption alone. This is the same policy that has always been in effect.

      As per Ben’s comment, that county is pretty much forcing business on city grounds and prohibiting Cannabis possession on government property (county in this case). It is the same as alcohol being prohibited in the county courthouse or at the county park. The rule dictating that business be conducted on incorporated territories is intended to minimize deferment of product since isolated production areas will probably defer product to other states at much higher rates that someone doing business in city limits.

      The main problem with the issue of drugs is that people seem to believe that drug use causes the conduct problems that they are trying to control when the reality is that the conduct issues exist independently of drug use per se. Also, they promote ignorance and fear as the way to avert drug cause conduct issues.

      If people want to remain reletively free of federal intervention, I suggest that any participating in production/distribution keep their numbers below the federal threshold. Basically, if you dont exceed 100lbs a year, avoid interstate relationships which includes complacency to out of staters buying and transporting your product, and you dont pull much more than 50k annual income, you wont hear from the feds. I seriously doubt that any medi bust so far was small beans and legal with no interstate involvement.

      What I am worried about is that I will be denied licensing due to the presence of a felony Cannabis conviction because I wouldn’t grow with an OMMP license due to the fact that you cannot legally be compensated for your labor or time. No rational person should actually believe that OMMP growers work for free and it is wrong for them to get away with what they are doing while I am punished for refusing to lie.

    10. jmalmo says:

      Will Obama Go After Legal Pot In Washington And Colorado? And if he does, will he smoke or vape it?