What the Feds Can Do About Prop 19
http://www.newsweek.com/2010/10/25/what-the-feds-can-do-if-calif-legalizes-marijuana.html
The attorney general will have a tough decision to make if California
legalizes marijuana.
10/25/10
Assume for a moment that California voters approve Proposition 19 on
Nov. 2. The state will have just enacted a process for legalizing,
regulating, and taxing marijuana use that no one else in the world
has ever attempted. But Attorney General Eric Holder, President
Obama's top law-enforcement officer, has said the administration will
"vigorously enforce" federal drug laws in the country's most populous
state regardless of the vote. For all the trails that approving Prop
19 would blaze, much of its impact would depend on the extent to
which Holder follows through on that threat.
The attorney general has shown some willingness to scale back on
marijuana enforcement; his Justice Department ended Bush-era
crackdowns on medical pot dispensaries in California. Of course, the
post致rop 19 world would be different. California cities could
license businesses that grow and sell marijuana on a large scale.
Drug dealers in other states would surely head to California's
"coffee shops" (as weed retailers are called in Amsterdam), buy some
California-grown product, and illegally transport it back home. It's
arguable that pot smokers and presumably some dealers can do that
today, but they at least need a doctor's permission and a
state-issued ID card, which provides cover for authorities, however
easily those cards may be obtainable. With that cover removed,
Holder, whose department includes the Drug Enforcement
Administration, could hardly ignore such a blatant violation of
federal drug law.
Or could he? If one takes Holder at his word, the administration
plans to do battle with marijuana retailers in California. That would
not surprise advocates of decriminalized marijuana負his and other
administrations have always opposed their cause. But if, after
election night, Holder and Obama still believe in that course of
action, they will have reasons to reconsider. For one, the
administration's cheapest course of action, a challenge to Prop 19 in
the courts, looks doomed. Constitutional-law experts say California
has no obligation to have the same criminal laws as the federal
government, so Holder's Justice Department can forget any lawsuit
compelling the state to make marijuana use a crime. "Arguably a state
could decriminalize murder" and the federal government could not
force it to do otherwise, says Ruthann Robinson, a constitutional-law
professor at the City University of New York. On the legalization
question, then, Holder's hands are tied.
But there may be other options in the courts. UCLA's Mark Kleiman, a
drug-policy expert, suggests Justice could try to preempt cities from
passing laws that license marijuana sales by arguing that those
licenses would help marijuana dealers commit a federal crime. That
strategy, if successful, would torpedo the entire tax-and-regulation
structure of Prop 19. But some legal experts are skeptical of that approach.
The Justice Department is currently arguing that federal regulations
trump state law in trying to block Arizona's immigration law. But
federal drug policy differs from immigration policy in that the
latter is an attempt to comprehensively regulate an issue without the
help of the states, says Alex Kreit, a professor at the Thomas
Jefferson School of Law. By contrast, when Congress outlawed
marijuana under the Controlled Substances Act, it said the act did
not preclude state laws regulating marijuana unless "the two [laws]
cannot consistently stand together." Since it would be possible for a
Californian to follow both federal law and the laws Prop 19 would
allow (easy: just don't buy, sell, or consume pot), the courts could
not prevent, say, Oakland from licensing marijuana, Kreit says.
However, Erwin Chemerinsky, dean of the law school at the University
of California, Irvine, thinks Justice may have a case if it can argue
that a local law that licenses marijuana "impedes the achievement of
the federal objective," namely preventing the sale of illegal drugs.
But if Justice were going to sue the state or local municipalities,
wouldn't Holder have said so? In a recent letter to former DEA agents
regarding Prop 19, Holder made his promise to "vigorously enforce"
federal drug laws, but he did not threaten a lawsuit, even though
many of those agents favor one and a suit would require far fewer
resources than raiding marijuana retailers and making arrests.
Legal issues aside, the DEA can still enforce federal drug laws in
California. And though it would be more effort than a legal
challenge, enforcement wouldn't require much investigation. Even a
DEA rookie could walk into, say, Oakland City Hall and ask to see
records of the licensed businesses, then go arrest people at the
addresses on the list. On this point, Holder could learn from his
predecessors: when voters in California and Arizona approved medical
marijuana in 1996, the Clinton administration argued that doctors who
recommended it could face criminal penalties. When that failed to
pass legal muster, the Justice Department changed tactics and brought
criminal cases against marijuana retailers, state licenses notwithstanding.
During the Bush years, the DEA boosted its enforcement of marijuana
laws in California, to little or no real effect胖EA agents made 594
marijuana arrests in 2006 in the state, compared with 359 in 2001,
the San Francisco Chronicle reported in 2007. The Chronicle also
noted that the number of marijuana plants seized annually during that
period grew more than threefold, to about 3 million in 2006. In 2008
DEA agents seized a record 5.2 million plants. And the arrests
continued until the Obama administration stopped cracking down on
dispensaries in March 2009. Yet despite the crackdown, dispensaries
grew in number: in 2007, the Chronicle estimated that doctor-approved
marijuana buyers could find the product in 300 stores across the
state, up from 100 in 2001. (Other publications have put the number
of dispensaries lower: London's Guardian reported that there were 150
in 2008, and The Christian Science Monitor found there were 183 in
2007.) Now that the Obama administration has stopped busting
dispensaries, various estimates put the number at between 500 and
1,000. If Prop 19 decriminalizes recreational marijuana use for
everyone over age 21, the number of retailers would almost certainly
skyrocket, and it's unlikely that the DEA would have the resources to
arrest them all.
History suggests that enforcement likely would not stop Californians
from selling and consuming legal marijuana. But it still would be
difficult for the attorney general to stand by as the state legalizes
pot. The reason: other states might not care about thousands of
Californians consuming legal marijuana, but they would fume at a
Justice Department that allows drug dealers to carry California-grown
cannabis across state lines.
Precisely how much of this legally bought, illegally transported
"gray market" marijuana would flood the market is unclear and would
presumably depend on price. A recent study by the nonprofit RAND
Corporation estimates that taxed, California-produced marijuana would
cost $91 per ounce for the end consumer at retail shops. That's far
cheaper than black-market prices, which can be as much as $400 per
ounce. But the researchers acknowledged considerable uncertainty
about the headway that gray-market California marijuana might make
across the country. Smuggling costs are difficult to estimate, for
example (what's the going rate for driving a truck full of California
pot to Wisconsin? Or Texas?), and tax levels in California are hard
to predict. And if cheaper California marijuana were to flood the
market, how far would sources of black-market pot, such as Mexican
cartels or traffickers based in Canada and rural America, lower their
prices to maintain their share of the business?
In another study, the RAND researchers made their best guesses at
these variables and tried to compare the price of legal marijuana
from California with cannabis exported by Mexico's murderous cartels.
They found that California pot would be far cheaper even with
estimated taxes included, likely taking over the entire California
market unless the cartels drastically cut their prices. When it came
to prices in other states, the researchers concluded that marijuana
from California would "undercut" prices of illegal cannabis across
the country only "if the federal government reacted to Prop 19 in a
fairly passive way." In a post致rop 19 world, in other words, the
more federal regulators crack down on the flow of California
marijuana across the country, the more expensive that pot would
become in other states, making it less of a threat to the cartels' business.
Prop 19 is, by many accounts, a flawed initiative. "I would rather be
talking about the merits of legalization than the demerits of this
cockamamie kluge of a bill," says Kleiman, the UCLA drug-policy
expert, expressing his frustration with the slew of media calls he's
received on the subject. "If a law is properly drafted, you know when
it's valid and you know what will happen if it passes. It seems to me
neither is the case."
Indeed, no one knows for sure whether California weed would replace
Mexican dope, or if the feds would sue California, or how often DEA
agents would be busting down doors in Oakland pot shops. But if
voters approve Prop 19, the attorney general will have to figure out
the answers to those questions, and quickly.
.
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