After more than five months since the voters in Colorado and Washington State legalized marijuana there still has been no official decision from the Obama administration on how they plan to handle the federal-state conflict, a new report outlines what the administration’s options are.
The Congressional Research Service, which not surprisingly provides research for members of Congress, has put together an extremely comprehensive analysis of possible responses from the federal government and the legal issues surrounding them. It is a long but worthwhile read if you want get into the weeds on the issue.
In summary, while marijuana is legal under state law it is still illegal under the Federal Controlled Substances Act. The federal government could decide to mostly leave the states alone, but if Obama wants to interfere the report looks at the three main tools at his disposal.
1. Federal Prosecution – The federal government can arrest people in these states for violating federal anti-marijuana laws. Going after regular smokers, while theoretically possible, would not be practical because it would require a massive new federal expenditure. The report points out 99% of drug offenses are dealt with under state law.
The federal government could go after the newly authorized commercial businesses to dissuade anyone from taking part. Or as they do with medical marijuana, only go after ones that violate some vague criteria.
2. Forfeiture – The CSA allows for the government to take property involved in drug crimes. Civil forfeiture doesn’t require criminal charges against the owner, just proof the property was involved in criminal activity. From the report: “Forfeiture proceedings are generally less resource intensive than a criminal prosecution and have been used in the past against medical marijuana dispensaries. In practice, the DOJ would be able to seize and liquidate property, both real and personal, associated with marijuana production distribution and retail sale facilities operating in Colorado and Washington without bringing any criminal action.”
This could be used in addition to prosecution or instead of it. If used aggressively this would make it nearly impossible for anyone to run a legal marijuana business in these states.
3. Preempt Lawsuit – The government could file a lawsuit in federal court claiming the new legalization laws are preempted by federal law. This is a tricky legal question and there is no guarantee the federal government would win. The personal possession provision in both laws are almost assured to be found Constitutional under the 10th Amendment. The main issue would likely be if the provisions licensing growers and retailers are preempted.
These possible actions are not mutually exclusive. The Obama administration could decide to use none of them by taking the hands-off approach Americans overwhelmingly would prefer, or they could use all three.
Attorney General Eric Holder claimed the administration would announce a decision on these new state marijuana laws “relatively soon,” but he said that almost two months ago.
Official White House photo by Pete Souza