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