Attorney General on Washington and Colorado Marijuana Legalization

UPDATE> The hearing went ahead, but Holder told Committee Chairman Patrick Leahy (D-VT) that the Justice Department has not decided its policy, but it will be coming soon. (March 6, 11:30 am)

On Wednesday, March 6, unless it is postponed by a forecast snow storm (a fairly unlikely outcome), U.S. Attorney General Eric Holder will testify before the U.S. Senate Judiciary Committee at the annual hearing on the activities of the U.S. Department of Justice. Under the committee rules, he should have sent to the committee in advance of the hearing a written statement for Senators to prepare appropriate questions for the hearing.

As of mid-afternoon Tuesday, the content of the statement has not been leaked to the press. Perhaps with common Justice Department arrogance they are holding the statement until the last minute.

I think it is very likely that his statement reveals the Department of Justice approach to the marijuana legalization laws of Washington and Colorado. It would be amazing if the Justice Department chose not to put this important matter in writing in advance of the hearing. Everyone knows that it will be a subject of senatorial questions and comment.

If I were the ranking Republican, Senator Charles Grassley (R-IA), I would certainly leak Holder's statement and my reaction to it, in order to try to shape the commentary about it. As the brother of an alcoholic, Senator Grassley is vehemently hostile to addiction and drug use, and any legislation that might liberalize drug use.

If Holder announces that the Justice Department is going to do anything that could be considered as an accommodation of the Washington and Colorado laws, Grassley could condemn the Attorney General and the Obama Administration for being soft on marijuana, etc.

If Holder announces that the Justice Department will oppose Washington and Colorado, Grassley could condemn them for waiting to so long to decide and for any incompleteness in the opposition he could find.

I think the odds are three to one that Justice will oppose Washington and Colorado and say that it is preparing a lawsuit to enjoin the state laws as violations of the Constitution's Supremacy Clause for being in "positive conflict" with the Controlled Substances Act and in violation of U.S. treaty obligations.

I think there is a 1 in 8 chance that the Justice Department will announce that it is going to formally cooperate with Washington and Colorado law enforcement agencies in carrying out their laws and to assure that marijuana from those states does not leak across their state lines to their neighbors or the other 48 states. This would be a terrific outcome in letting the states carry out their laws. It would, of course, be a signal to the other states that they could move ahead with marijuana legalization on their own terms.

Another option is that Justice does not sue to stop Washington and Colorado but simply attempts to pressure them to back off, and engages in the kind of ad hoc prosecutorial harassment of the marijuana industry such as we have seen in California.

Sphere: Related Content

Fast moving developments: Feds responding to Washington and Colorado: Obama, Leahy, Holder. Where's Biden?

The stasis in Washington on marijuana policy is breaking because of the Washington and Colorado votes to legalize marijuana.
President Obama will be on Barbara Walters on ABC TV on Dec. 14 answering questions. Ethan Nadelmann very astutely interprets the President's words on Huffington Post.
Senate Judiciary Committee Chairman Pat Leahy (D-VT) has said he will hold hearings early next year on the federal response and on Dec. 6, 2012 wrote  this letter to Gil Kerlikowske, director of the White House Office on National Drug Control Policy to inquire about federal policy. Leahy notes that there are legislative options for Congress to resolve the apparent conflict between Washington and Colorado law and current federal law, such as legalizing possession of one ounce.
Attorney General Eric Holder said on Dec. 11 that a policy pronouncement will be announced "relatively soon" in answer to a question.

Ethan Nadelmann notes that Obama is at last taking the issue seriously after previously joking about it, when asked.
Second, Obama's comment that users are not a "top priority" for federal enforcement is not news and says nothing.
Third, and significantly, Obama said that he does not support widespread marijuana legalization "at this point." That's the language he used responding to questions about same-sex marriage, until he supported it.
Fourth, and most importantly, Obama said we "need to have a conversation," about marijuana legalization to "reconcile" federal and state law. This is not a statement that conveys an insistence on an inflexible application of federal supremacy to obstruct state law.
Of course, as Nadelmann asked, who is going to be part of this conversation? Is it simply an internal Department of Justice conversation? Will Members of Congress such as Chairman Leahy or U.S. Rep. Diana DeGette (D-CO), who introduced H.R. 6606? Will officials from Colorado and Washington and the public be included in this conversation?

Is the policy that Eric Holder may be announcing going to pre-empt the conversation, or will it be stalled until there is a conversation?

And what is the role of Vice President Joe Biden? He has had oversight of the crime and drugs portfolio inside the White House. Former ONDCP staffer Kevin Sabet told Rolling Stone,

"The vice president has a special interest in this issue...As long as he is vice president, we're very far off from legalization being a reality."

Taking Dr. Sabet seriously, a petition campaign on the White House petition site targeting Vice President Biden has been launched. As of this writing it had over 8,600 signatures -- 25,000 are needed to trigger a reply.

Sphere: Related Content

Marijuana is legal in two states; Regulation writing commences

On Dec. 10, 2012, Colorado Governor John Hickenlooper signed Amendment 64 which was passed by 55.34 percent of Colorado voters on November 6, 2012. This act puts Amendment 64 into effect. It is legal to possess and use marijuana in Colorado privately, and to grow three mature marijuana plants and keep the harvest. One may also give away for no consideration up to one ounce of marijuana. Today the Governor appointed a task force to develop regulations to carry out the Amendment's provisions creating a legal industry to cultivate, process and sell marijuana under state law.

Previously, on Dec. 6, 2012, Washington Initiative 502 took effect, pursuant to its terms, having been passed by 55.7 percent of Washington voters. It is legal to possess and use up to one ounce of marijuana (and larger quantities of marijuana infused products), but not to grow it, buy it or sell it. According to the Secretary of State's website, in contested statewide races, marijuana got more votes than every other candidate, other than U.S. Senator Maria Cantwell. Every statewide office holder who won in a contest, from the Governor-elect, Jay Inslee on down, got fewer votes than legal marijuana and Initiative 502. Marijuana even got more votes than President Barack Obama and Vice President Joe Biden.

Marijuana legalization in Washington is under the jurisdiction of the Liquor Control Board.
On Dec. 5, 2012, the Liquor Control Board published a notice that it is seeking public comment to begin to develop rules to license producers of marijuana. They want written suggestions and comments by Feb. 10, 2013, by email, fax or mail.

By the way, outgoing Governor Christine Gregoire, in 2011, filed a petition with the Drug Enforcement Administration to reschedule marijuana for medical purposes.

Sphere: Related Content

Washington and Colorado voters approve marijuana legalization

On Nov. 6, 2012, roughly 55 percent of voters in both Washington State and Colorado passed initiatives to legalize marijuana for social use. Washington's Initiative 502 is described here and Colorado's Amendment 64 here.



UPDATE (Nov 13, 2012): The Washington Post published my LTE urging the Justice Department to take a "wait and see" approach to the new laws.

UPDATE (Nov. 28, 2012): Washington’s measure (I-502) received 55.7 percent to 44.3 percent. Colorado’s measure (Amendment 64) passed 55.32% to 44.68%. These are overwhelming margins, and politicians know it! The combined votes in those two states resulted in more votes for marijuana than for Barack Obama! Oregon’s Measure 80 lost, but by a much smaller margin (46.89% to 53.11%) than pollsters predicted.

It will cease to be an offense in Washington to possess an ounce of marijuana or less after Dec. 6, 2012. Authorities in Washington will have a year to develop regulations for the production and sale of marijuana in licensed premises. The initiative does not provide for individual home cultivation, although the medical marijuana law does provide for patients to cultivate.
Here is a useful FAQ.

The Colorado law takes effect on the day that the vote is "proclaimed" by the Governor pursuant to the Colorado Constitution. Persons over 21 years of age may possess and use marijuana, and they may grow no more than 3 mature plants (6 plants total) and retain the harvest, but may not distribute it other than to give no more than one ounce to a person over 21 for no remuneration. By July 21, 2013, the state shall adopt regulations to govern the large scale cultivation, production and distribution of marijuana for remuneration. Local governments are authorized to write time, place, manner related regulations for marijuana distribution facilities.

Obviously there are a lot of local details to work out in each state.

On Nov. 7, 2012 the U.S. Department of Justice issued a statement that marijuana possession, cultivation and distribution still violated federal law and that law will be enforced. Clearly this is not the last word on the federal government's response.

Indeed, no one can predict exactly how the federal government will respond. While the legal route is probably clear, the politics are not. Legally, the state laws violate the Single Convention on Narcotics to which the U.S. is a signatory. Thus the U.S. has a treaty obligation to enjoin the states from carrying out their laws. However, there is no authority in the United Nations to force the U.S. to do this. While Article VI of the Constitution provides that treaties (like federal laws) are "supreme Law of the Land," we know that the Supreme Court has held Acts of Congress to be unconstitutional. The Supreme Court may be asked to weigh the powers reserved to the States under the 10th Amendment to the Constitution against the treaty obligations at some point. Of course, counsel in the Justice Department could conclude that the restrictions of the treaties intrude to far into our domestic law, and not defend the treaty against state claims, but that would be an unlikely outcome, both legally and politically.

I think it is probable that the federal government will bring suit to enjoin Washington and Colorado from carrying out the licensing provisions of their new laws, and I think it is likely that the lower federal courts will rule for the federal government. If legal cultivation and sales get underway in CO and WA, they will supply distributors throughout the nation because their costs are likely to undercut illegal growers elsewhere, and the price of marijuana across the nation will go down, perhaps quite dramatically. This is the prediction of Jonathan Caulkin, Mark Kleiman and Beu Kilmer, three of the co-authors of the excellent book, Marijuana Legalization: What Everyone Needs to Know, (Oxford Univ. Press, 2012).

Is there likely to be an increase in illegal marijuana cultivation in these states for distribution elsewhere in the U.S. by those hoping to escape state prosecution and anticipating that federal prosecution can't meet the extent of the law breaking?

Will either of these states start collecting sales tax, excise tax and other revenues? Not if the feds can block their programs, which gives the state authorities a powerful incentive to resist the federal suits.

A very important question is how the rest of the world will react. Mexico in particular may quickly conclude that they could reduce if not eliminate the bloody conflict among their criminal organizations and against the society if they were no longer being fueled to a significant degree by illegal marijuana sales, according to a Christian Science Monitor report. Alesandro Madrazo, a Mexico City law professor, predicted at a conference at The Brookings Institution on Oct. 3, 2012, that Mexico would fairly quickly legalize  marijuana in response to U.S. marijuana legalization.

UPDATE:

The Washington Post reports that  Luis Videgaray, the head of transition for the incoming President of Mexico, Enrique Pena Nieto, said “These important modifications change somewhat the rules of the game in the relationship with the United States.”  “I think that we have to carry out a review of our joint policies in regards to drug trafficking and security in general.

Sphere: Related Content

Newt Gingrich's surprising mis-educational moment about hemp

At the Concord, NH Holiday Inn Wednesday morning at about 10:45, I was leaning through a doorway into the absolutely jam-packed Newt Gingrich event. Newt was in full blown professorial form elucidating our liberties from our founding texts. At one point, after noting Jefferson's soaring ode to liberty "that [all Men] are endowed by their Creator with certain unalienable Rights," Newt said God gave us the right to bear arms. Really? Was this in the time of Adam, or of Moses, or the Prophets? Was this left out of the New Testament? Perhaps, God only gave us the right after the first firearms were invented -- anticipating the American revolution. Did God give the right to bear arms to all other persons in all other countries? Do the God-given rights mentioned in our Bill of Rights apply to all persons in other countries too? Or did God only give these rights to the American people? How did the Members of Congress and the Senators at the First U.S. Congress get the message?

But I am digressing. Newt Gingrich started taking questions from the New Hampshire public. Typically he stuck to talking points.

But one question, drew a howlingly inaccurate answer from the acclaimed historian and former professor. One of the students from among a dozen Students for Sensible Drug Policy present in New Hampshire for the political activity asked about Washington and Jefferson growing marijuana at Mount Vernon and Monticello, and why it is illegal today. The student, of course, used the current popular term for the hemp plant to avoid potentially mystifying Dr. Gingrich.

According to The Washington Times, Mr. Gingrich replied,

"I think Jefferson or George Washington would have rather strongly discouraged you from growing marijuana, and their techniques of dealing with it would have been more violent,"

which is pretty absurd since we were talking about hemp. (There is no record of Washington or Jefferson growing any varieties of the hemp plant (i.e. marijuana) to get high.)

Here's an excellent 90 second Video of the official guides at Mount Vernon providing a tour of hemp production there under George Washington's expert and profitable management. It made me wonder if Newt Gingrich ever did "the tourist thing" and visited Mount Vernon while he served in Congress.

Sam Stein at Huffington Post provided a more detailed report of the whole exchange.

Should Gingrich have known about Washington and Jefferson's hemp cultivation?
Since Federal law has since 1937 forbade "hemp" cultivation (since it "looks" like marijuana), we could expect that many Americans and Members of Congress would be completely ignorant of the fact that marijuana, then called hemp, was widely cultivated in 18th and 19th century America.

Newt's Ph.D. from Tulane University was in Modern European History, so if his study of history ignored early U.S. history to favor his academic specialty, his ignorance of Jefferson and Washington would be perfectly excusable.

But in his campaign stump speeches he purports to be an expert on the founding fathers: what they believed, how virtuous and industrious they were, how they knew the value of a profit and how to make one, etc. I may be used to an unusually high standard in History professors since I took courses with Roger Lane at Haverford College. But I think it would be unlikely that a well educated historian concerned about the lessons of Revolutionary times would be ignorant that hemp was a widespread major crop in America, one of the "Naval Stores" (cordage, tar, pitch and timber) that were important to build wooden 18th century sailing ships for trade and war.

In 2010 Newt Gingrich wrote two novels about George Washington and the Revolutionary War. Perhaps he is not a particularly curious researcher.

Or perhaps he was just trying to B.S. his clever way around a question that he want to sneer at.

As it happened, seven hours later on Wednesday evening, another SSDP student, Brian Broom-Peltz, caught Governor Romney leaving his rally in Peterborough, NH to ask him about "industrial hemp." Governor Romney said he didn't know what that was. Oh well, perhaps if Brian had said industrial marijuana or cannabis hemp or something.

Sphere: Related Content