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No federal challenge to marijuana legalization in Colorado and Washington (cnn.com)
146 points by Alex3917 1369 days ago | hide | past | web | 86 comments | favorite

I'm surprised more people apparently don't find this to be important. It reminds me of the day the EU formed, warranting all of a two paragraph blurb somewhere in the back of the NYT. Or when the first successful manned commercial launch happened as part of the X-Prize, and all of zero people in a certain ivy league engineering school program had heard about it the next day. As general life advice, I think there's a certain value in cultivating the ability to recognize big events when they happen.

It isn't the outcome a lot of people wanted. Many people wanted the feds to throw a hissy-fit so that Colorado and Washington could successfully defend themselves against the Feds and set some sort of good precedent.

If the Feds just keep turning a blind eye, then really we still remain in limbo as the status remains merely a matter of (subject to dramatic change) policy.

On the other hand, if the Feds just keep turning a blind eye, that might provide the time needed to accrue evidence and sway public opinion enough to legalize at the federal level.

On yet another hand, as someone who doesn't smoke marijuana but thinks it should be legal, I'm more interested and clarifying the precedent so there's a better, more concrete understanding of how our state democracies relate to the federal democracy.

> clarifying the precedent so there's a better, more concrete understanding of how our state democracies relate to the federal democracy

I think that's been a somewhat fuzzy, ongoing debate all the way back to the beginning, so I'm not really holding out too much hope on it being clearer any time soon.

the feds only have power from the states, so that's pretty clear. What isn't clear is what the states will do about the federal government over-reaching like with obamacare.

The Feds can pull their "commerce clause" card and do whatever they want.

That's a domain I'd really rather not travel lightly, as in recent years the government (courts, Justice department) have decided that Some Things are just fine which I felt were not so cool. I'd really rather not get them to decide on a states-rights issue, if we can instead find a way to make it legal federally, as the penalty (to states) of losing sounds high.

A law that isn't currently enforced is a dangerous one. What would happen if all cops started pulling over anyone driving +5 over the speed limit?

The state gets addicted to the revenue, people spend more time looking at their speedometers instead of the road, and the limits keep going down (instead of becoming more realistic) because the 'think of the children' crowd is just as powerful as ever. Source: Melbourne, Australia

People would dislike cops (even) more, slow down while driving, and municipalities would suddenly have an increase in revenue.

That's a big risk. If it's not done by 2016, and a conservative or someone interested in playing the "drug war" card gets into office, we could see a totally new Justice Department filing cases against all of these (and whatever new) States.

Yeah. Now, when even people like my religious-right father living in a red-state supports legalization, is a good time to do it. That sort of support could dissolve in the future if the Feds go back to being "the good guys" to people like him after an administration change (instead of "those evil states-rights hating guys"), or if there is another strong push on the morality of drugs (something that is damn-near impossible to reason with, you just have to wear it down over time).

A Democrat administration fighting and losing this battle is the best chance it has and we don't want to miss this window.

Of course, where there's risk, there's money to be made...

Unfortunately, this administration has a history of broken promises when it comes to respecting state medical marijuana laws. They have always given themselves ample loopholes in any guidance so that they can justify desired prosecutions.

They even said as much in the announcement:

> The size and profitability of marijuana businesses will still be a factor prosecutors can consider, but there also must be additional illegal activities for prosecutors to take action.

With enough scrutiny (which we know the Feds have the capacity for), it's trivial to find some regulation that a particular business is violating. And as soon as they have their justification, they'll come down on suppliers and vendors like a ton of bricks, using both the official violation and the federal Controlled Substances Act in the prosecution.

Overall, this announcement is a good sign that they're losing the war on public opinion, and I don't suspect they'll crack down unilaterally. I think they're going after a strategy of containment; disincentivizing the experiment from spreading, as well as preventing bales of cannabis from flowing across state lines (which, in fairness, will certainly happen).

Yeah, knowing Obama's track record they'll start prosecuting at some point once the targets get fat enough.


I was corrected a while ago on a different site that the Obama administration has been very two-faced about progressive MJ laws. I don't know if a lot of people are aware of that, I certainly wasn't.

This administration just has a history of broken promises.

War, marijuana, spying, etc.

My view is, we have to wait for after the 2014 elections to see which way he will go. Sadly, changing the number of or length of terms a President can serve won't affect this situation of being bound up by upcoming elections as each side uses them to great effect.

Even if they keep their word, that word is as good as the next AG /President. The law didn't change, they just decided not to enforce certain laws. In theory it should be a disturbing trend since we're a "nation of laws"

There's nothing to stop the next administration from challenging it. This is the biggest problem in my mind. I'm happy that things are moving in a direction I agree with but I view the patchwork of state and municipal legislation as sub-optimal and largely a work in progress.

Sates could raise a defense of laches, which is a legal doctrine that basically says 'you had your chance and let it pass.' Although the rules regarding timeliness of litigation are fuzzy, courts take a dim view of attempts to 'turn the clock back' if people have had time to get used to the new situation.

So a state passes a law that the Federal government or some group of citizens dislike and a lawsuit rapidly ensues, that's a fair enough controversy and it may even be possible to have the law held up by injunction. But going back to challenge a law that has been around for a while is not so easy. Other factors include whether the challenge is coming from above or below (it's easier for a powerful body like the federal government to marshal the resources to sue, so there is less excuse for a delay in doing so) and whether the aim of the lawsuit is to expand or constrict freedoms (in general, expansion is viewed with greater favor).

IANAL, and no citations will be forthcoming for general remarks, since exceptions certainly exist.

>There's nothing to stop the next administration from challenging it.

The current administration hasn't shown to be all that friendly to marijuana laws, so it could be a blessing in disguise.

Exactly. The whole notion of relying on someone else's good graces to not be considered a criminal by your own government is completely absurd. Especially an individual(s) who supports whatever position they think will get them (re-)elected.

It's not important enough, but it's a start. They're not backing down on a federal level, just keeping out of the states that have legalized it.

When California and enough other states finally legalize it they'll finally have to face the facts.

So in order to get marijuana rescheduled, there is a broad consensus that at least medical needs to be legal in 26 states. (To either get the Supreme Court to review the issue or force action by congress.)

Right now most state officials want to legalize it in their states, but they are afraid because of the conflict between state and federal laws. This is especially true since the government has not until now said that they would not prosecute government employees for administering state programs. This has dissuaded a lot of state reps from voting for reform who otherwise would. This issue is completely gone as of today, so you're going to see support at the state level going from around 40 percent to around 60 percent overnight. It's impossible of overstate how huge this is.

I clearly slept through my government class. Where does the 26 states requirement come from?

> Where does the 26 states requirement come from?

A fantasy that the United States is an association of state governments ruled by majority vote of the states?

My concern is that the federal gov't will do what they do with alcohol laws (legal drinking age, blood alcohol limits) which is "if you don't tow the federal line, you lose your highway funds".

Nothing get politicians to flip faster than money.

I agree.

By the way, any idea why they are doing it now? Are they planning to tax it later?

> Are they planning to tax it later?

Depends on who "they" are.

If you're talking about the Federal government, I don't see them giving up on the War on Drugs(tm) any time soon.

I'm not sure about how Colorado is operating, but the setup in Washington includes pretty steep taxes and quite a bit of regulation.

> If you're talking about the Federal government, I don't see them giving up on the War on Drugs(tm) any time soon.

They're obligated by treaty to keep cannabis illegal

Relaxation of US cannabis laws 'violates UN drug conventions' http://www.theguardian.com/society/2013/mar/05/relaxation-ca...

No, the INCB claims they are obligated to keep cannabis illegal, but they're not necessarily competent to decide on that issue. In particular, according to the 1988 Convention, the parties are only required to do so "in conformity with the fundamental provisions of their respective domestic legislative systems", which it might be argued a federal prohibition isn't.

Aren't they also obligated by tons of treaties not to spy on UN countries?

What might be the down side of having roughly as available as tobacco, with similarly harsh levels of taxation?

The people who have supplied the war on drugs stop getting paid.

And for a lot of people the rich don't like (the blacks, latinos, the underclasses) there's one less way to put them in jail and/or pressure them.

IMHO, racism and prejudice are a drop of water in the ocean that is peoples' drive to make money and justify/secure their careers.

"It is difficult to get a man to understand something, when his salary depends upon his not understanding it."

- http://en.wikiquote.org/wiki/Upton_Sinclair

To my knowledge of Colorado, there is a 15% state excise tax that will be channeled to schools, and a 10% state tax that will go back to regulation. There may also be city taxes; Denver was to vote on a 5% tax a little while ago.

Realize Eric Holder said the same thing about respecting state laws over federal, and then proceeded to attack dispensaries, so it's hard to believe him this time.

And let's be clear that the attack ruined a lot of people and took parents away from their kids for ten or more years.

If you're talking about the ones in Washington, weren't those operating illegally under Washington law and federal law? They didn't attack dispensaries because they were dispensaries -- in Washington some will be legal soon -- but because they weren't following the guidelines Washington sent.

All are illegal under federal law.

What's it called when laws are enforced for some people and not others?

The federal government hasn't challenged partial legalization elsewhere, either; what it has done (even after announcing that it would not make it a prosecution priority) is continue to prosecute people who were complying with the state law for violating federal drug laws.

So, its really not big news that they aren't challenging the legalization. What will be big news is if there really is a durable consistent accommodation in the way they choose to prosecute (not just a statement or guidelines that seems to indicate a deprioritization, but something that is tangible in terms of differences in action.)

I think the problem is selectively enforcing federal laws isn't a good option. Even thought he supreme court struck down DOMA, they stated that until that happened the administration should have still defended it.

While I think they should change the federal marijuana laws, I do not relish the future prospect of an administration deciding not to enforce federal laws they don't like because of this precedent. Voter ID, Abortion, racial profiling, etc.

Admittedly, though, I'm not sure how the laws will get changed. The Right to Vote took a very long time, so the Right to Toke might take a bit longer than the next couple of years.

No challenge? They are sending teams of soldiers in to attack marijuana dispensaries in these states. I think the confusion here was the assumption that the "challenge" would be civilized and conducted in the courts.

DEA gets to keep money from drug busts. I can not think of a way to communicate how fucked up this is.

Slow down, slow down. Is there a URL on this? When you mean soldiers, do you mean the US Army?

"Is there a URL on this?"


"When you mean soldiers, do you mean the US Army?"

No, I mean these soldiers:


Seems like the feds are reserving the right to swoop in and put a lot of people in prison for a decade+, perhaps after enough lobbying $$$$ from the privately-run prison companies. Sickening.

Unlikely, given that the DoJ unveiled a plan to hugely reduce the number of drug prosecutions, avoid mandatory minimum sentences through procedural means etc. What's 'sickening' is you mental picture of what could happen, but there's no great reason to believe it actually will; don't mistake your bias for reality.

The same person who ruined the lives of many people who previously believed him when he told them he wouldn't ruin their lives, is now telling us he won't ruin more lives. So I don't think I'm overstating the odds of further ruination here.

You're not stating the odds at all, but treating your own opinion as fact. However, I don't think nuance is your thing and I'm a well-known pedant, so we're unlikely to reach agreement on this.

no, this actually happened. feel free to respond with some evidence to the contrary though.


It's not about what "could" happen, it's about what's happening right now.


Only about 5% of prisoners in the US are housed in private prisons.

Liquor & Tobacco companies probably spend more money lobbying to keep it illegal. Marijuana is a direct competitor to those two products.

Is it really though? Anymore than soda, coffee, etc.? I don't see any evidence that marijuana legalization would affect their sales. In fact, they often go hand-in-hand, from my experiences in college, so maybe legalization would help their sales.

Personally, I figure Phillip Morris will be all over marijuana as soon as it is legal at a federal level. Tobacco is slowly being stomped out by ever more stringent restrictions and regulations, so marijuana could even be the future of their businesses as tobacco slowly sinks into obscurity.

They already have farms, equipment, and sales/distribution experience too. Sure, there is a lot of difference between the two products, but they would have to be pretty incompetent to be completely unable to leverage their existing assets to dominate the pot market.

They purchased 100,000+ acres of Humboldt county in the early nineties. Not sure if the kept it, considering that premium cannibis is now grown indoors.

People say that a lot, yet I enjoy consuming two or more of those at once... (well, less so tobacco, but I really don't see THC being a replacement for nicotine. If you're into nicotine, you're still going to want nicotine.)

The best defense I can think of is to get as many people to engage in this business (buying/selling) and consumption before their stance changes and make it so pervasive (I am thinking hundreds of thousands of people) that they will be forced to pardon everyone.

I'm not American, so I'm not well informed on this, but is the basis for federal prohibition of narcotics not the Commerce Clause? Doesn't that mean that, constitutionally (as far as the USSC is concerned), the states have no right to overrule the federal gov't?

What does this mean for other state nullifications of federal law, like attempts to ignore Obamacare or gun control? Can the states use the USG's acquiescence to state nullification of federal powers ensured by the Commerce Clause in this instance to establish precedence for nullifying federal law in other areas?

> is the basis for federal prohibition of narcotics not the Commerce Clause?

Most likely, along with most federal restrictions. However, if you're making a constitutional argument, the Commerce Clause only regulates interstate commerce, not intrastate commerce. The federal government has no constitutional grounds to regulate anything created, sold, and consumed within the bounds of a state. Hence why Prohibition required a constitutional amendment. If you're looking for precedent, there it is.

In Wickard v. Filburn (http://en.wikipedia.org/wiki/Wickard_v._Filburn), the Supreme Court pretty much ruled that everything is interstate commerce. That case involved a farmer growing wheat for consumption on the farm. The court ruled that because the grain he grew was grain he wouldn't have to buy, he was having an indirect effect on the interstate market for wheat.

I'm familiar with the precedent, and I'm aware that the federal government has interpreted the commerce clause as carte blanche for arbitrary regulation; I'm arguing that such interpretation seems blatantly wrong to me.

No. In that case the Supreme Court decided that threshing the wheat turned it into a form that might, hypothetically, sufficiently affect an undefined notional "interstate market". This is doubly unconstitutionally vague.

In Gonzales v Raich[1], the Supreme Court affirmed the government's right to control drugs grown domestically within a state and sold to state citizens. The states, however, are not violating Federal law in non-enforcement. The Federal government is free to enforce its laws against violators of federal laws in its courts (District/Circuit). States are basically declaring that its not a priority or objective of its state police officers. It's not nullification, so much as it's "That's your law; you enforce it."

[1] http://www.law.cornell.edu/supct/html/03-1454.ZS.html

That precedent seems rather circular; it effectively says "intrastate commerce affects interstate commerce, thus we can regulate intrastate commerce". That seems like a rather blatant license for arbitrary regulation on an ends-justify-the-means basis: we can't do what we want under those restrictions, so we don't have to follow those restrictions.

> That seems like a rather blatant license for arbitrary regulation on an ends-justify-the-means basis: we can't do what we want under those restrictions, so we don't have to follow those restrictions.

Of course that's what it is. That's what virtually everything the federal government does is.

It might be worth reading Wickard v. Filburn (1942)[1] for the original case that intrastate commerce affecting interstate commerce and therefore regulatable by the federal government. In US v. Lopez (1995)[2], the Court does actual say there are limits to what the federal government can lump under "interstate commerce," as they declare that the Gun-Free School Zones Act was beyond the power of Congress.

[1] https://en.wikipedia.org/wiki/Wickard_v._Filburn

[2] https://en.wikipedia.org/wiki/United_States_v._Lopez

Like gay marriage, history is on the side of legalization and normalization. Once the issue has a non-threatening human face, opinions change. Medical marijuana is a great vehicle for this, because only a real jerk is going to deny someone undergoing chemotherapy or suffering from glaucoma something that alleviates their pain.

As someone who lives in Seattle, it's fairly common at this point to walk past people downtown openly smoking pot on the street, without fear of arrest. I mean, the city even has a festival called Hempfest. Tourists may notice this and be shocked at the openness, but Seattle is not overrun by rampaging marijuana addicts, so what conclusion must they draw from it?

I noticed that alcohol is not listed in the controlled substance schedules. That seems like it would be a schedule I or II based on the definition and other drugs that are also on the list. Worse, you can die from an alcohol overdose, unlike cannabis. Why is this dangerous drug legal? Because people are conditioned to believe it is socially acceptable, and know that prohibition doesn't work. The same is now happening for cannabis.

As a Washington resident I'm glad that the DoJ has decided not to drag us into a legal battle over this that could have delayed the opening of recreational marijuana storefronts, which should happen around the end of the year.

This bit is just as interesting to me:

> Under the new guidelines, federal prosecutors are required to focus on eight enforcement priorities, including preventing marijuana distribution to minors, preventing drugged driving, stopping drug trafficking by gangs and cartels and forbidding the cultivation of marijuana on public lands.

The federal government's interference with state marijuana laws in recent years has not come via grand legal challenges to the laws themselves, but rather through continued and sometimes arbitrary harassment and arrest of medical marijuana providers across the country.

Hopefully this signals that the DEA will no longer go after producers and distributors who are complying with state laws, but instead leave it to the states to enforce their own laws.

> opening of recreational marijuana storefronts, which should happen around the end of the year.

My understanding is that legal growing for recreational use cannot begin until around the end of the year, so it will probably be a few months after that when the stores actually have goods to sell and can open.

That may very well be. I wonder if there will be any way for existing medical growers to "convert" plants to recreational production, which would speed things up at the outset given that I'm sure a lot of current medical growers are applying for these licenses.

I would hope so, but I haven't heard anything about that. It would make sense if they were able to "convert" plants by just paying the recreational tax for an existing plant.

They may not have bothered to cover that edge-case though, since it is probably only really going to be an issue once (I assume it would be perfectly on the level to sell "recreational pot" to people with prescriptions for "medical pot"... Growing plants specifically for medical use may stop being a thing.)

Meanwhile, Roger Christie, a "cannabis sacrament minister," remains in pre-trial detention, without bail, for over three years. The Federal Magistrate in the case said that Christie is "a danger to the community."


Then there's the current administration's attacks upon medical cannabis dispensaries in states where medical cannabis is legal. http://www.motherjones.com/kevin-drum/2012/02/barack-obamas-...

Is this another example of "flip flopping?"

Roger Christie dispensed pot for a donation of 'The Approximate Street Value'. I'm not sure that a non-profit religious organization that is in effect 'selling' un-taxed goods is going to get out of jail soon. If he'd been handing out alcohol or Pez Dispensers it'd still be pretty shady.

The second article is a little more interesting, but I'll repeat from my comment above, it is very difficult for the administration not to enforce federal laws, even when they may want to. I would be very worried about operating a dispensary until federal laws change, unless you are ok with going to jail as an act of civil disobedience because you believe the law is unjust.

so a three year pre-trial detention period is OK with you? What about the right to a speedy and fair trial?

We have numerous examples of criminals accused of exponentially more serious crimes being granted bail, the latest of which is a woman who stabbed her boyfriend to death. http://www.hawaiipolice.com/puna-murder-update-08-23-13

Are you seriously trying to imply that an alleged pot dealer is more dangerous than an alleged murderess?

I didn't mention the alleged murderess, which doesn't appear to be a federal case.

I agree that being held without bail seems bad. He does not sound particularly innocent, though, failing to file tax returns, haggling prices on the phone, acting as a dealer, etc.

He's at a crossroads for me, from my viewpoint, marijuana should be legalized, but religions should not be allow non-profit status.

So, yes, they should legalize marijuana.

It should not be ok to sell it to finance your life by being a 'church', or whatver he is, and not pay taxes.

Yes, get angry about no bail, but I don't think he's a poster boy for why marijuana should be legalized.

Are you seriously trying to imply that an alleged pot dealer is more dangerous than an alleged murderess?

Who alleged she's a murderess? She may have allegedly killed her boyfriend, but murder implies malice aforethought, while the victim's "lengthy criminal record and history of domestic violence" paints a different picture.

Let's not use terms that aren't justified by the facts, please.

Way to parse words!

Semantics aside, killing is definitely more dangerous than selling pot

Please, let's just stick to the heart of the matter here.

We see numerous instances where killers, rapists, child molesters, etc, are granted bail, so why not a mid level pot dealer?

The big banks get caught laundering billions of dollars in cartel drug money yet not one bank employee ever saw the inside of a federal detention center, much less held without bail for over 3 years!

This is selective enforcement.

All the more insulting when sending kids and innocent people to jail for simple cannabis use in other areas.

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