By David Borden
I posited yesterday that federal fast talking about the Colorado and Washington initiatives would start soon. It turns out that federal fast talking hasn’t even needed feds to get started, a “Network Media Fail” analysis by Peter Guither demonstrates:
Some of the network media have been trying to cover the legalization of marijuana in Colorado and Washington and clearly are in catch-up mode, not really knowing how to talk about it. And they’re completely thrown by the fact that the DOJ, for the most part, isn’t coming right out and commenting. So they’re all forced to turn to… Kevin Sabet.
Kevin is a former Office of National Drug Control Policy staffer — Phil faced off with him in The Fix on Tuesday. He had a respectable level position at the agency, from what I understand, but he was not the drug czar or near it, and he doesn’t work at ONDCP now. Pete questions why media would think he knows what’s going on behind the scenes or why we should think he does.
I’ll just comment on two things from the ABC article by Christina Ng that Pete highlighted:
“When you have the governors of both states [opposing it] as well as the president and Congress, who has already determined that marijuana is illegal, this is not going to be a walk in the park for marijuana enthusiasts,” Sabet said. […]
That is an inaccurate characterization by Kevin of the positions of the governors. Colorado Gov. John Hickenlooper opposed the initiative, and according to the Denver Post is speaking with federal officials to assess their intentions — Eric Holder, head of all DOJ, not ONDCP. But Hickenlooper also told the Post that “[y]ou can’t argue with the will of the voters” and they plan to move forward with it. Washington governor-elect Jay Inslee has also said that he’ll respect the will of the voters.
The second is a paragraph that was not presented as a quote, so I don’t know precisely what Kevin told Ms. Ng, but here it is:
In 2005, the Supreme Court by an 8-0 margin struck down a California law that legalized medical marijuana in the state. The Court said Congress had the power to criminalize marijuana under the Commerce Clause.
Raich v. Gonzales was actually 6-3, but more importantly, the court did not strike down California’s medical marijuana law! What the court did was decline to limit the reach of federal law. There’s a difference.
As I discussed yesterday, state and federal law can be different, but that doesn’t mean they’re in conflict. And not every type of conflict is legally impermissible. California’s medical marijuana law is very much in effect — the trouble there is to providers, not directly to patients, and it’s from federal raids and other actions, and local zoning restrictions. Tellingly, no federal prosecutor in 16 years of state medical marijuana laws has ever tried to undo one of them in court.
Perhaps they’ll try now with one of the legalization initiatives, but their prospects for success on that route are unclear. What seems most unlikely is that states would be forced to reverse not only their licensing provisions, but their elimination of penalties for users and some sellers; much less that federal agents, more limited in number than state and local police, would conduct the massive numbers of possession busts (or in Colorado home growing busts) needed to keep prohibition going at that level. That’s why the medical marijuana laws work.
In the meanwhile, police and prosecutors in Washington have more or less confirmed the walk in the park beginning December 6th.