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Marijuana is illegal under the prohibition laws
of both the federal and state governments. The practice has evolved that
federal law enforcement agents target “kingpins,” leaving the detection,
arrest, prosecution and punishment of lesser offenders to state authorities.
No law, however, stands in the way of federal police, like the Drug Enforcement
Administration, going after small fry.
Indeed, the federal government has fought zealously
to maintain the right to arrest and prosecute minor offenders. In the
2004 Raich case,
the U.S. Supreme Court, at the government’s urging, upheld the criminal
prosecution of a sick medical marijuana user who grew her own
tiny supply, despite the fact that everything she did was entirely legal under
state law.
In the second month
of the Obama presidency, Attorney General Eric Holder announced that
as a matter of Justice Department policy (not law), the DEA
would not be raiding medical marijuana facilities that were in compliance
with state law. He was silent as to whether the same policy will
constrain the DEA from taking indirect steps to shut down the medical dispensaries,
such as threatening to arrest and prosecute their landlords under federal
criminal conspiracy laws, a common practice. Since October, 2009, when
the Justice Department issued written "guidelines"
saying it wouldn't be targeting people complying with state law as to medical
marijuana, the raids have diminished.
If a state passed
a taxation and regulation law, would it be running afoul of federal
law?
No. There is no legal impediment
to a state enacting such a law.* Implementing it, however, is another
matter. The activities of persons engaged in or around cannabis cultivation
and commerce, for which they would be licensed or otherwise permitted under
state law, would likely constitute serious federal crimes. For example, farmers
would be exposed to federal “manufacturing” charges, distributors to federal
“trafficking” charges, and state employees who issued the licenses or
the excise tax stamps to charges of “conspiracy.”
Although the Attorney General
could announce a similar policy (not to prosecute people who are obeying
state law) with regard to non-medical marijuana, that would hardly provide
a solid foundation for a whole new legal/policy approach to controlling
cannabis.
Unless a state is willing to exercise some chutzpah,
changes would need to be made in federal law before a state’s regulation
and taxation plan could go into effect. Ideally, those changes
would resemble the 21st Amendment, repealing federal marijuana
prohibition and liberating the
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states to experiment with a variety of
taxation and regulation schemes, or retain prohibition if they choose. Alternatively,
Congress could erect a national regulatory structure in which the states
participate and benefit--or not--along the lines of the
Cannabis Revenue
Act.
As for the chutzpah,
states have options to act unilaterally. That marijuana is prohibited
under federal law does not mean that states must prohibit it too. Accordingly,
a state could repeal its marijuana prohibition laws, and replace them
with nothing, thus shifting the responsibility and expense for local enforcement
to federal authorities.
New York State did
that in 1923, with alcohol, three years into Prohibition and ten years
before repeal. (Some say that as
a consequence, New York City, where speakeasies flourished, escaped the
level of violence that plagued other large cities like Chicago and Detroit.)
In 1930, the voters of Massachusetts voted to repeal the Commonwealth's alcohol prohibition laws. Curiously, the only geographic areas that didn't support repeal were Martha's Vineyard, Nantucket and Cape Cod, where rumrunning provided gainful employment. (Similarly, opposition to Prop. 19, the 2010 voter initiative in California, came from Humbolt Courty.)
In 1932, the voters of eleven other states repealed or modified their state prohibition laws. California, whose vote was 3 to 1 for repeal, went a step further with a constitutional amendment securing to the state government the exclusive right to tax and regulate the alcohol industry when legal under federal law.
A state feeling even spunkier could enact and implement
a regulation and taxation scheme, leaving it to licensed farmers, processors,
distributors and retailers to handle their own problems with the feds. Since
a regulated system requires regulators, a state may want to provide legal
protection to public employees charged with federal prohibition offenses.
A safe option
for a state would be to enact a regulation and taxation plan, but with
a proviso that it would not go into effect until necessary changes were
made in federal law. That would keep states on the right side of the law,
give them time to do serious planning, and send a strong message to Congress
that states are ready to end the tax-exempt status of the marijuana industry.
2.26.11
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*“[W]e have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” U.S. Supreme Court, New York v. U.S., 505 U.S. 144, 166 (1992)
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