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Expect Federal Fast Talking About CO and WA to Start Soon

Every drug reformer got to go to Denver except Dave Borden :) (SSDP leaders celebrate victory -- photo by Troy Dayton)
Not a day has passed since legalization initiatives passed in two states, and ominous words have already been spoken. According to CBS, "[d]rug laws remain unchanged following passage of marijuana ballot initiatives":

"The department's enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiatives and have no additional comment at this time."

I haven't seen the statement on the DOJ web site yet. Perhaps it's only been sent to media outlets. Colorado's governor, meanwhile, hopes to talk to US Attorney General Eric Holder as soon as this week, according to the Denver Post.

Gov. Hickenlooper and CO Atty. General John Suthers both have said they intend to respect the will of the voters. But if the feds tell them that Colorado can't do this, that would be a convenient answer for these officials who probably don't want the trouble, especially when a little time has gone by and the spotlight on them over the amendment is a little less intense. So far DOJ's statements as well as Hickenlooper's sound accurate to me, to the extent that I've studied them. But it's important to be prepared to communicate a factual understanding of how the law works, in the event that federal or even state officials attempt to obfuscate.

As a CNN legal analyst this morning commented (email or post if you know his name), federal law toward marijuana, and state law in Colorado and Washington (as well as all medical marijuana states) are different. But that doesn't necessarily mean that they "conflict." Specifically, it doesn't mean that they have a "positive conflict." If the state itself were to sell or traffic in marijuana, that would be a "positive conflict" with federal law. But Colorado and Washington have no obligation to enforce federal drug laws. The legal question as far as federal preemption is whether they can issue licenses to marijuana sellers that protect the sellers under state law.

My understanding of the law as well as that of colleagues I've spoken with is that this is not a positive conflict, as it does nothing to prevent the feds from making a drug bust if they choose to do so. It may well get tested in court. But it's worth noting that in 16 years of state medical marijuana laws, no federal prosecutor in the country has ever tried to preempt state medical marijuana laws -- they've busted dispensaries, but they have not tested the laws themselves in court. The same law is at stake with these legalization initiatives, with the difference being the scope of what they legalize and regulate.

My guess is that DOJ will face greater pressure to try to lawfully preempt one of these laws (as opposed to squashing them by force) than they have felt with state medical marijuana laws, even if they are doubtful of their chances for success. But time will tell. For us, the thing to remember -- and to point out whenever it comes up -- is that federal law and state law are "different" -- they conflict politically, but that doesn't mean they conflict legally. The feds don't have a lot of incentive to acknowledge this, and as the statement shows, they can can be factual but still leave out that important point.

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While no federal prosecutors have tried to argue that federal preempts state marijuana laws, there is currently a case in Arizona filed by the Maricopa County Attorney Bill Montgomery to argue exactly that.


First off just a minor correction, the article I read seemed to imply that these are two separate quotes here.  The thing about the policy not changing and congress having enacted the marijuana laws was directly from the DEA.  The statement about they are reviewing and have no comment yet is from the DOJ

Anyway, this was certainly to be expected.  There's no way that those who have clung to prohibition all this time are just going to roll over and go away.  They are going to fight to what is certain to be a very bitter end.

Too bad for them that this is America.. the American people spoke last night... this is THEIR will... and if congress won't step in and represent those people, we have the power to fire them by voting for their opponents next time.

If Republicans really want to lose the House too next time, then they should continue to oppose the will of the American people.


One of the riders on the law here in CO. states that it would be O.K. to grow and sell industrial hemp. I believe I am right on this. I think that once Gov. Chickenpooper sees the tax revenue raised by this activity, he might do his best to keep it going. Am I correct on this? Responses are welcome.


Hemp is what will bring the DEA out of the woodwork.  Maybe hemp can shed some light on the DEA: They are not a Federal Agency, but a private corporate one akin to Wal-Mart . . . Proof that the DEA don't belong to the Federal Government: they get paid in cash to make sure you and I buy foreign products and sell foreign products -something that Wal-Mart and Toyota have been doing for a while.  The Sherman Anti Trust act of 1890 specifically states its illegal for the DEA to receive revenue from taxes since the DEA are in the business of making sure China and Canada etc sell their hemp in U.S. stores, while making sure American hemp cannot be bought in America . . . it's been well over 50 years since the U.S. has sold American hemp inside its borders.  Because hemp can make fuel, food, paper, plastics and clothing, then we must assume it's illegal in America to work at a job that has something to do with food, clothing, plastics and fuel . . . the law states it's illegal to work at a gas station and proof of it is: hemp creates gasoline and diesel, but is illegal, therefore all fuel is illegal and gas stations are illegal in the U.S.  Hemp would dissolve the DEA since the DEA are more about making jobs for China than keeping China White out of Brooklyn.  Hemp in Colorado and Washington will make us see that for over 40yrs, we allowed an 'agency' to outlaw work in America, outlaw consumerism, outlaw competition, outlaw capitalism, outlaw healthy foods, outlaw wearing clothes, outlaw taking vitamins etc.

"Gov. Hickenlooper and CO

"Gov. Hickenlooper and CO Atty. General John Suthers both have said they intend to respect the will of the voters. But if the feds tell them that Colorado can't do this, that would be a convenient answer for these officials who probably don't want the trouble, especially when a little time has gone by and the spotlight on them over the amendment is a little less intense."

What do you mean?  CO has to change their laws right?  CO law enforcement has to ignore quantities of 1oz or less of marijuana?  Right?  Regardless of what the Holder or the greater fed tells these CO officials they have to stop prosecuting small time marijuana grows and possession, right?  If the feds want to come in that is different, right?

I can't believe the fed government would fight this progress and not let the experiment begin.  To any legal experts out there.  Even if the fed government threatens lawsuits, couldn't these new free states counter sue the federal government and challenge them?  Could citizens of CO do a class action lawsuit against the federal government over constitutional right or some other legal grounds?  

Can't these new free states now challenge the federal government instead of being shut down by them?  I would think that these states could help change federal law if they stuck up for the people.   

War is Over!

But there are two states they have to consider so it's double the problem for the fed and then there are other nations to think of. We still don't know what the reaction will be from Latin American nations caught up in the drug war. They may just go with it and legalize too with more following. The drug war may be about to see a walk out. Here's hoping. 

sources of law

While the legalization of MJ in WA and CO is certainly revolutionary, I find the <a href="">acquittal of NJ Weedman </a> farther-reaching and much more fundamentally revolutionary.  This case reflects the most important and revolutionary American value, namely self-government.

"Jury nullification [of a law]" is possible when The People (the jurors) fully accept their responsibilities as the final arbiters of the applicability of any law to the case they must decide.  Courtroom officials, including all practicing attorneys, judges, and witnesses employed by the government, absolutely loathe and despise the nullification of laws by juries, so don't expect to be rewarded or respected by any of them.  Expect instead for them to try to intimidate you, but realize that you have the full power to exercise your freedom to think for yourself. Here are the steps to exercising your right as a juror to nullify a bad application of a good law, and/or any application of a bad law:

(1) Look and act cooperative, deferential, ill-informed and indecisive when questioned in the course of the jury-selection process.  You must appear malleable, and to have no pre-existing opinions about any matter you're being questioned about.  If you don't do that, you won't get on a jury, usually.  Do NOT mention jury nullification.  Even admitting that you know about that possibility will get you excused from serving on almost any jury, anywhere.

(2) Agree to follow the judge's instructions and to apply the law as the judge will portray it later for the jury.  (This is where courtroom officials disqualify all prospective jurors who might do their own thinking.  Courtoom officials really want to do all of your thinking for you.  So of course you must agree to follow the judge's instructions, no matter what.  Not agreeing to follow the judge's instructions will get you excused, and possibly get you a contempt citation.  Jurors have to come from somewhere!)

(3) In jury deliberations and voting, do what you think is right, no matter what.  You are not a robot under the control of the judge or anyone else.  You are a Juror, which means, among other things, having responsibility for weighing everything you know, and thinking for yourself, regardless of any efforts that have been made by anyone, in or out of the courtroom, to persuade you to ignore your own perceptions, your knowledge of relevant facts, your convictions about the law you're supposed to be applying, or anything else.  You are a Source Of Law!  (Hence the term "Juror", which comes from the Latin word for "law".)  Other jurors may oppose you and try to get you to do whatever the judge said to do.  Instead of that, do what you think is right, just, and virtuous, acting for and in the interests of the public as you understand it.  Keep your eyes and ears open, and listen carefully to everything that's said, because you might discover you're wrong!  Accept the truth, and defend it, if you can figure out what it is.  If your behavior *must* violate any instruction by a judge, it's probably best not to discuss that instruction or answer any questions about your understanding of it, because if you admit that you are intentionally violating it, you *might* be held in contempt of court.  You can't be held in contempt for your vote, however, and nobody can force you to answer any question other than, "How do you vote?"  Your vote, and any contributions you may make to your discussions with other jurors, are all that matter.

It's that simple, Citizen.  If you think it's great to be an American, as I do, then shoulder your share of the responsibility for making America a good place to live, and be proud of yourself for doing so.  Many people have given their lives to preserve our republic.  Maintaining our republic is worth a few days of your time, right?  By serving on a jury, no matter how you vote or why, you are helping to maintain the Rule of Law, which is a good thing for everybody, including you -- even, and perhaps especially, when we have laws you may despise.

The federales next move

As we all know, the feds can continue to bust people for violations of federal drug laws even if the states are no longer enforcing them. That's probably a lot easier to do with medical marijuana dispensaries than it is for individual smokers, so they'll have to take a different approach with states like Colorado and Washington, assuming they want to maintain the status quo. The most obvious way to do that would be by passing legislation that withholds federal funds from states that don't enforce federal drug laws. This is most likely constitutional and was used quite effectively to "persuade" the states to put the drinking age at 21. I'm not sure how much political will there is to enact this type of legislation, but it's never too early to lay the groundwork for heading it off.

Even if there isn't support for this type of legislation in Congress, the Obama administration could probably achieve a similar (if smaller in scope) effect by changing certain funding rules of its administrative agencies' programs. Maybe the laws that govern these agencies wouldn't permit a state's enforcement of federal drug laws to be a factor in a funding decision, but it's something to look out for.

In other words, until the various branches of the federal government agree to lay down their arms in the drug war, they can still roll back the victories that have been achieved in the states.

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