Rob Douglas: Hug a Colorado pot smoker

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If you think the federal government has overstepped the powers delegated to it by the U.S. Constitution by passing laws and regulations that transgress the freedom, power and rights reserved to the states and individuals, you should hug a Colorado pot smoker.

Rob Douglas

Rob Douglas' column appears Fridays in the Steamboat Today. He can be reached at rdouglas@SteamboatToday.com.

Find more columns by Douglas here.

After all, Coloradans who’ve been on the front line fighting for the legalization of marijuana have demonstrated that individuals and states can fight a winning battle for self-determination against the federal government.

On Sept. 10, during a congressional hearing that received scant media coverage because of President Barack Obama’s address to the nation about Syria that day, the Department of Justice waived the white flag of surrender when it comes to legally challenging Colorado and Washington for having legalized the production, sale and use of recreational marijuana.

In “Feds have no viable legal strategy to overturn marijuana legalization, Deputy A.G. concedes,” Reason magazine’s Jacob Sullum, reported:

“Testifying today at the first congressional hearing on marijuana legalization in Colorado and Washington, Deputy Attorney General James Cole conceded that the Justice Department does not have a solid legal basis on which to challenge those states’ new laws.

“‘It would be a very challenging lawsuit to bring,’ Cole told the Senate Judiciary Committee, because repealing state penalties for growing, possessing, and selling marijuana does not create a “positive conflict” with the Controlled Substance Act.

“Cole argued that the feds might be on firmer ground if they tried to pre-empt state licensing and regulation of newly legal marijuana businesses. But if such litigation was successful, he said, it could make the situation worse by leaving the industry unregulated.

“That is why the Justice Department settled on the approach summarized in the memo that Cole issued on Aug. 29, limiting its enforcement efforts to cases that implicate eight federal concerns, including sales to minors, drugged driving and diversion to other states. If Colorado and Washington do not adequately address those issues, he said, ‘We have reserved quite explicitly the right to go in and pre-empt at a later date.’ He summarized the department’s policy as ‘trust, but verify.’”

Sullum noted that one Senator pressed Cole “to say whether state-approved marijuana growers and suppliers can now rest easier. ‘As long as they are not violating any of the eight federal priorities,’ Cole replied, ‘The federal government is not going to prosecute them.’”

Further, according to Sullum, “Cole said the Justice Department is working with federal regulators to allay banks’ fears of dealing with marijuana businesses.”

Yes, Cole left wiggle room by cautioning that there may be circumstances — most notably the “eight federal concerns” — that could result in federal prosecutions. And yes, time will tell how Colorado’s U.S. Attorney wields that prosecutorial discretion. But, realistically, Cole’s memo and testimony add up to a long overdue acknowledgment that the federal government doesn’t have a legitimate interest in prosecuting medical and recreational marijuana users, growers and suppliers.

So how did this retreat on the part of the federal government happen?

It came about because of the dogged work by those in the marijuana legalization movement who refuse to take ‘no’ for an answer at the local, state and federal level when it comes to the unjustified and indefensible use of criminal laws to punish — often with draconian mandatory minimum prison sentences — sellers and users of a product that is no more harmful than alcohol.

It also came about because a majority of voters in Colorado and Washington — including many who detest the smell of pot, but cherish the smell of freedom — had the courage to revolt against state and federal prohibitions against marijuana by casting ballots in favor of citizen-led state initiatives legalizing marijuana that left state legislators no choice but to abide by the demands of the people, not the feds.

And, it came about because politicians at all levels and of all stripes are starting — just starting — to realize there is no political upside to denying Americans the freedom to choose on a wide range of issues.

The question now is whether individuals and states seeking freedom from federal interference with those other social and economic issues will follow the trail blazed by the marijuana legalization movement.

To reach Rob Douglas, email rdouglas@SteamboatToday.com.

Comments

Scott Wedel 7 months ago

I would argue that it came about because of US Supreme Court decision Raich v Gonzales and some very smart pro legalization lawyers in Colorado. Colorado was the only state which wrote state medical mj laws in a way that creates real doubts whether they might win in federal court.

The supporting and dissenting opinions in Raich was a discussion of the limits of Congress to regulate interstate trade (the Commerce Clause). The majority said that even a small amount grown at home cannot practically be distinguished from mj that is part of the interstate drug trade.

So when Colorado state legislature created rules for dispensaries the brilliant pro mj lawyers wrote the rules so that dispensary mj could be distinguished from the drug trade. Colorado was ready for a court challenge by being the first (and only) state that regulated mmj from seed to sale.

Surprisingly, the feds never busted a Colorado dispensary that was following state law and never brought forth the expected court challenge. And Colorado's dispensaries did not prove to overall be unpopular or a bunch of fronts for interstate drug dealers. Instead of mmj being an unpopular social ill, the citizens of Colorado and Washington (not all potheads) passed an initiative to legalize with a similar legal framework as Colorado mmj.

And now the feds strategy on mj is in tatters. The voters in two states have passed initiatives that openly defy federal law. It is an awful political position for the feds to fight the states over popular initiatives granting more rights than the feds wish to allow. And worse of all, the state's mj laws could easily enough be upheld by the Supreme Court. When the dissenting opinions were by O'Connor, Thomas and Rehnquist then it is not hard to imagine how a case with the state regulating mj could be decided against the feds.

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rhys jones 7 months ago

The thing that impressed me about the mj vote wasn't that we bucked Federal law, but the power of the ballot. If we could pass laws contrary to the Federal Government, think what we could do which was perfectly legal: We could vote in a mayor system. We could tell Council how to spend the lodging tax. We could demand that capital improvements over X amount be voter-approved. Steamboat could secede from Routt County -- even Colorado -- becoming our own State, or, following Texas' example, country. Borders, fences, keep the riff-raff out (those of us not already here) I stretch the point to illustrate the possibilities, but it could be done. Heck, I've already seceded from the larger household, forming my own country.

The only one of the govt's 8 points I have an issue with is the driving aspect. Their own tests showed that drivers under the influence of mj were as proficient as, if not BETTER THAN, the straight control group. There has not been any increase in accidents attributable to mj since its legalization; in fact, no correlation has ever been established. I assure the doubters, there are more stoned drivers on the road than you might ever suspect. Doing just fine. Speaking from experience, I'm a MUCH safer driver under mj's influence, assuming less and verifying more. It was beer, which got me into trouble, and why I don't drive to this day, though I could have years ago. Funny how one gets self-righteous, when relegated to public transportation and one's feet. I watch the cars going by the bus stops, so many of them with one occupant -- burning irreplaceable fossil fuels, propelling thousands of pounds, just to get their lazy @$$ wherever they're going... and I digress.

We could fix that too. I'll sign anything, at City Market.

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John Fielding 7 months ago

Makes sense to me to treat it like the other recreational drug. But maybe this state could take a cue from others who place tighter limits on booze. For instance, if we don't want to use the word marijuana of any of the many slang synonyms we could use the term "package store" like Connecticut, Generic appellations such as Alcoholic Beverage Commission, (ABC) or State Liquor Store, work in other states. Careful about the acronyms though, Department of Intoxicant Control is unappealing, as is Commission Regulating Universal Marijuana Sales. Whatever the official approved name, Pot Shop will still be the common term.

As for advertising, alcohol gets to use beautiful women, jet set party scenes, race cars, all things that appeal to teens as well as young adults. Whatever policy we set for pot should be the same, but will not because there is so much existing tradition to change.

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mark hartless 6 months, 4 weeks ago

The fact that the people of the State of Colorado stood up to the feds, and ostensibly nullified federal law is a very good thing.

However, they did not do it for us, Rob.

In most cases the typical pot smoker is all about big government; just ask one of them for whom they voted last time.

Furthermore, they spent most of a decade cowering around the lie that pot is "medicinal" in order to get their weed legally. They had very little interest in saying to Uncle Scam: "Hey man, back off, you don;t have the right to tell me what to smoke, grow, drink, etc..." In fact they did the opposite, essentially begging government for their rights.

Legalizing pot does not reflect well on their sense of autonomy so much as it says that potheads will disobey "big brother" when it comes to gettin' high.I doubt they would do it for much else.

When it comes to guns or many other things which ought to have similar personal autonomy, these folks will fold in the face of big gubbamint faster than you can say "it's 4:20..."

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