By Dave Borden, Publisher, Drug War Chronicle
Media have often gotten the nature of the federal-state conflict on marijuana legalization wrong. An otherwise strong article in the Washington Post last August, for example, carelessly claimed that the Colorado and Washington legalization initiatives “directly violate the federal Controlled Substances Act, which prohibits the production, possession and sale of marijuana.”
As I pointed out in a series of blog posts after the election, most legal scholars don’t believe that the initiatives violate federal law or could be preempted in federal court, although one couldn’t say for sure unless they got tested in court. Our federalist system is specifically designed for states to have different policies on the books than the federal government does, so long as their policies don’t prevent the federal government from using its own resources to enforce federal policies.
And the state laws don’t do that, nor do they involve state employees in growing or distributing marijuana themselves. All they’re doing is defining how the state will or won’t use its own enforcement resources.
Notably, no federal official has sought to overturn a state medical marijuana law in the 17 years since one was first enacted. The kinds of misconceptions that this kind of careless misstating on an important point of law in this evolving issue can have a chilling impact on the decisions made by lawmakers in other states as well as localities.
Mr. Borden must be smoking weed. The Federal government has vast powers through the commerce clause to do just about whatever it wants. The Supreme court has even ruled that growing wheat for your own consumption can be regulated (Wickard v. Filburn, 317 U.S. 111 (1942). If wheat, why not marijuana? In addition, the federal government only need to withhold money from the states to force “voluntary” compliance as was done when the federal government threatened to withhold highway money if states did not set the drinking age uniformly to 21. How quickly facts are discarded when activists plead their case.
No facts have been discarded, anonymous. The federal government has the authority to enforce federal drugs laws in any part of the United States, including Washington and Colorado, and nothing I wrote implies otherwise. Federal agents can bust any grower or distributor or possessor of marijuana in those states, if they choose to do so and have evidence.
But Washington and Colorado have no obligation to help them do that, and that makes all the difference in the world. Most by far of the law enforcement resources in the US are state and county and local, not federal.
May I add to my previous comments that the federal government has stated (CBS News 60 minutes) that it has informed the Colorado and Washington banks that dealing with state approved marijuana dispensaries may subject them to drug enforcement laws (money laundering). This forces the dispensaries to deal in cash only (no credit or debit cards); an attractive situation for the criminal element.
The federal government is mostly concerned about the marijuana growers exporting their crops across state lines and less concerned with medical use. As for the dispensaries, as long as they are in strict compliance with state law, the feds will not raid them.