Prohibitionists are Overstating Feds vs. State Marijuana Legalization Case to Media

A mostly great piece in Rolling Stone this weekend, "Obama's Pot Problem," missed the mark on the federal preemption question -- can the feds shut down Washington and Colorado's legalized regulation systems? Tim Dickinson wrote the following on that subject:

[T]he administration appears to have an open-and-shut case: Federal law trumps state law when the two contradict. What's more, the Supreme Court has spoken on marijuana law: In the 2005 case Gonzales v. Raich contesting medical marijuana in California, the court ruled that the federal government can regulate even tiny quantities of pot – including those grown and sold purely within state borders – because the drug is ultimately connected to interstate commerce. If the courts side with the administration, a judge could issue an immediate injunction blocking Washington and Colorado from regulating or taxing the growing and selling of pot – actions that would be considered trafficking under the Controlled Substances Act.

But a former Bush administration official quoted in the New York Times on Thursday, former DOJ civil division head Gregory Katsas, made the opposite prediction. Katsas was "skeptical" that a preemption lawsuit would succeed, according to the Times. Why? Perhaps because it's not just that the feds can't force states to criminalize drug possession, as Kevin Sabet selectively pointed out to Dickinson. It's also the case that they probably can't directly force the states to criminalize sales either. The Controlled Substances Act in fact leans against federal preemption of state drug policy, as pointed out in a law professors brief on preemption submitted in a California case this year.

Dickinson also pointed out that federal officials had used threats to prosecute state employees involved in implementing regulations for medical marijuana. In my opinion the US Attorney letters were deliberately vague -- scary enough to influence state officials, but in most if not all cases stopping short of explicitly making that threat. A better piece of evidence, I think, is that in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to actually invalidate such a law in court, not even after the Raich ruling. Why not? They must not think they have a slam dunk case. And if preemption is not a slam dunk for medical marijuana, then it's not a slam dunk when it comes to legalization either, although there are additional arguments to throw against full legalization.

The reality is that no one knows how this will turn out if it goes to court. Raich established that federal police agencies can use their powers in medical marijuana states to continue to criminalize marijuana federally, justified by the Interstate Commerce Clause. But that is not the same as having the power to forbid states from granting exceptions to the states' own anti-marijuana sales laws, which in legal terms is what the regulatory frameworks do, and plenty of smart lawyers are skeptical that they can do that. This is not a slam dunk either way.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Bring it on!

I would bet that Feds can't do anymore than they've been doing in medical marijuana states.  Anybody remember that opportunistic drug warrior John Walters? 

Fed vs. State

The " Propaganda Unit " is an empty threat . They say that Federal law is the rule . They claim that States can only bow down to the Feds . This is an attempt to distract you from the overall picture . That picture is that States can legalize . The end of alcohol prohibition is your blueprint for the end of Cannabis prohibition . Learn your history people . The Federal government cannot stop a State from legalizing Cannabis . Just as with the end of alcohol prohibition . Don`t be a sucker . Think when you drink and think when you smoke .  That  " Big Green Tsunami " is misting down on us . It feels good .

rolling stone?

and i quote the patron saint of latter day junkies, K. Cobain,


"the average rolling stone reader does gather moss."


since when have the United Sea Pirates of Whatever-we-can-get obeyed any law other than brute force ?

Thinking Clearly's picture

The Legalization of Marijuana is Smart

If the voting public favors the legalization of marijuana, any Federal law to the contrary is a repressive law.

It will not stand, and it should not. The Federal government can do whatever it wants.

That is what the Declaration of Independence is all about.

The legalization of marijuana is the smart thing to do for the Federal government.

They're afraid that if they

They're afraid that if they take it to court it will overturn the whole CSA altogether too. If they lose, they loose more than if they sat still and let it happen.
Scooter's picture

The Democratic Action

To operate under the mindset "Federal Law trumps State Law" is a terrifyingly Orwellian thought. Isn't the Federal government comprised primarily of individuals voted into office by "We, the People"? Yet when it comes to a State issue voted into law by "We, the People" the Federal government thinks they can "Just Say No". I find this preposterous and tyrannical. Our entire democracy is based on the voting process. When the Federal government thinks it can simply ignore it then it's time for a major change.

The people have spoken.

Surely, the issue here is not, should the Fed be able to over rule the state; but, The people have over ruled the Fed.

The people have spoken loud and clear, that they went medical cannabis. 

The people are sovereign.

When the majority voted for cannabis, that was it.

End of story.

No one can overturn that vote without an vote.

The vote is LAW.

Federal statutes are merely legislation. Not LAW.

Rant over..... as he exhales deeply with a contented sigh.....

HardcoreEnigma's picture


The Feds need to stop with everything they're doing against the states whom have chosen to regulate Marijuana use, because under the constitution The Feds, just because they don't agree with it DO NOT have the Authority to over turn, overthrow, or fight The States on decision that have been voted in by THE PEOPLE! PERIOD!

Ask Richard Lee

It's easy to talk tough when you have nothing to lose.A lot of people took the administrations word that they wouldn't go after anyone who was in line with state law.Then they went after Harborside and Oaksterdam for being too successful.Even though they were sighted as the countries best at obeying state law and sticking to everything that was legal and right.People can't expect the feds to be there if there's a disaster and then yell that they have no business when they don't like what they do.The fact is that on cannabis,the feds have been duplicitous hypocritical liars.If they want to go after medical cannabis,against the will of a vast majority of their own people,then say so.This saying one thing and doing the opposite is a worse crime than shooting up heroin in your eyeball on national TV.That's only in bad taste.What Holder/Obama are doing is worse than setting people up and then making the bust for what you just told them to do.You know,like the police do every day.It's cynical,evil and wrong.Like the whole war on drugs.Here,we even have a safe injection site for addicts that are homeless.So people complain that only a small % are using it.Well,the rest of us shoot up at home.It was never meant for any but the homeless.Even so our federal government spent hundreds of millions of the taxpayers dollars trying to shut the place down with misinformation and just plain hypocrisy.The feds can help or they can waste even more money fighting a failed drug war.The money spent fighting,as we have already seen,goes right down the toilet.

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