Federal reaction big unknown in legal marijuana question

In the waning days of a campaign to legalize marijuana in California two years ago, all nine ex-directors of the federal Drug Enforcement Administration simultaneously urged White House officials to come out in strong opposition.

The pressure worked: Attorney General Eric Holder declared his office would “vigorously enforce” the federal ban on marijuana “even if such activities are permitted under state law.”

Whether that was a real threat or just posturing is unclear; California voters rejected Proposition 19.

The test case instead could be Washington, where voters on Nov. 6 will decide whether to confront the federal ban on marijuana and legalize sales.

Speculation on the potential federal blowback is rife.

Would the Obama administration pick a legal fight over states’ rights and try to block Initiative 502? Would federal prosecutors charge marijuana growers and retailers, even if they are authorized by state law?

Or would – as some opponents and supporters predict – federal authorities denounce the law but largely leave Washington alone?

The Justice Department won’t say.

DICTATED BY POLITICS?

Legal and drug-policy experts say any federal response likely would be dictated as much by politics as by law.

Seattle City Attorney Pete Holmes, an I-502 supporter who talks frequently with federal authorities, thinks the Justice Department would back off after “a long, intense, fairly high-level conversation” with campaign and state officials.

“In the end, I think the feds will go with the will of the voters,” Holmes said.

Since the legalization movement took hold in the 1970s, at least 11 states – most recently, Rhode Island this year – and several large cities have stripped criminal penalties for possession of small amounts of marijuana, usually making it an infraction akin to a ticket.

Full legalization has been proposed and rejected by voters in Alaska, California and Nevada and is on the ballot this November in Colorado and Oregon.

In Washington, a state fiscal analysis estimates I-502 would result in as many state pot stores – 328 – as there were state liquor stores, with 363,000 customers consuming 85 metric tons of pot, all of which would have to be grown in Washington state.

That would be a “whole new ballgame” demanding federal action, said Kevin Sabet, a former senior drug-policy adviser in the Obama administration. He predicts the federal funding that requires a drug-free workplace could be endangered, as could federal highway and law-enforcement grants.

“These are the options that would be on the table,” said Sabet, an opponent of I-502. “The idea that a state can collect funds, collect taxes off an illegal activity – I can’t imagine that would be allowed.”

Federal criminal prosecution of users, growers or sellers also would be an option. A 2005 U.S. Supreme Court case upheld the power of federal agents to arrest and prosecute medical-marijuana patients, in part because pot could cross state lines.

Federal law prohibits the possession, manufacture and distribution of marijuana. Penalties range from little to no prison time for possession of small amounts of pot to life in prison for big-time traffickers. For example, someone convicted of possessing 110 pounds of marijuana (50 kilograms) would face at least five years in prison, according to the U.S. Code.

An attorney in that case, Georgetown law professor Randy Barnett, said the legal arguments would be “even more forceful for recreational marijuana.”

“Washington state is its own boss under criminal law, but what they say doesn’t affect the federal government’s authority to enact the Controlled Substances Act,” Barnett said.

It’s unclear, however, whether it would use that power. The DEA views medical-marijuana dispensaries as illegal but has selectively enforced federal law.

Should I-502 pass, arrests might have to wait until December 2013. By then, the state Liquor Control Board would begin issuing grower, processor and retailer licenses, and federal law would be violated on an industrial scale.

‘SUPREME LAW OF THE LAND’

By then, I-502 might already have its day in federal court.

One of the most-discussed possibilities is for federal prosecutors to seek an injunction blocking the initiative, based on Article 6 of the Constitution, which makes federal law “the supreme law of the land,” pre-empting state laws when they conflict.

In a “pre-emption” challenge, federal lawyers could contend I-502 actively requires someone to break federal law. Such a challenge, for example, could hinge on requirements for the state to issue marijuana grower and retailer licenses, and to collect marijuana taxes.

Based on that theory, the Arizona attorney general, the Oregon Supreme Court and a California appeals court recently ruled that federal law partially pre-empted medical-marijuana laws in those states.

But University of Chicago constitutional law professor Aziz Huq said the history of pre-emption cases were “messy” and full of “internal contradiction.” At times, the U.S. Supreme Court has been reluctant to toss state laws, he said, even when they conflict with federal drug laws, such as Oregon’s assisted-suicide law.

“The bottom line is, the feds still could come in and bust marijuana shops, but the arguments to pre-empt (Washington state) law are weak,” Huq said.

John McKay, the former U.S. attorney who filed I-502, said he thinks the measure would survive a pre-emption challenge but hopes Congress, faced with a rebellion among states over marijuana law, would allow states to “opt out” of criminal prosecution in favor of strict regulation.

U.S. Attorney for Seattle, Jenny Durkan, declined to be interviewed, but sounded skeptical in an interview last year.

“Every lawyer that I have talked to, including those who support the initiative, think that it will be pre-empted by federal law,” she told The Associated Press.

Attorney Douglas Hiatt, a marijuana-legalization advocate who opposes I-502, agrees.

“I think the feds would be in and out of court in 10 minutes,” he said. “It’s clearly in conflict with federal law.”

Both candidates for state attorney general – Democrat Bob Ferguson and Republican Reagan Dunn – oppose I-502, but say they would defend it if the state were sued.

Earlier this month, the group of ex-DEA directors who opposed California’s Proposition 19 spoke out again, urging the Obama administration to oppose I-502 and legalization measures in Oregon and California.

There has been no response thus far, and Barry McCaffrey, drug czar in the Clinton administration, wonders whether there will be one.

“I don’t think they want to say a word (before the election) because they’ll lose votes, whichever way they go on it,” McCaffrey said. “Once the election is over, I don’t think any politician right now wants to be known centrally as being engaged in this issue.”

Stewart Jay, an I-502 supporter and University of Washington law professor, agrees.

“I’m very skeptical that this is something the federal government will want to spend its law-enforcement priorities on,” especially if Barack Obama wins re-election, Jay said.

“But it’s anybody’s guess, really.”