Leading up to a committee oversight hearing with Attorney General Eric Holder, eight former heads of the Drug Enforcement Administration sent a letter to Senate Judiciary Committee leadership, asking them to urge Holder’s enforcement of federal marijuana law. But the harshest words came in an advisory that accompanied the letter. In the press release, former DEA administrator Robert Bonner, a lawyer who briefly served as a federal trial judge, went so far as to accuse state employees implementing the new marijuana legalization laws of committing a felony:
The Colorado and Washington laws permitting and regulating the commercial cultivation and sale of marijuana are in direct conflict with federal law which makes these activities illegal. Under the U.S. Constitution, federal laws are supreme and trump state laws that conflict with them.
Indeed, those who carry out the Colorado and Washington legislation are aiding and abetting violation of federal law, itself a felony under federal law. This may not be the perfect storm, but it can only lead to the perfect train wreck. That is why we are urging Attorney General Holder, as he did in the case of the Arizona immigration law, to file a lawsuit challenging the Colorado and Washington laws without delay.
Bonner’s allegation against Washington and Colorado’s civil servants misrepresents the nature of the two laws, and of the principle of federalism. The federal Controlled Substances Act does make possession and distribution of marijuana a federal crime. But, because of what is known as the anti-commandeering principle, it does not and could not compel the states to enforce federal law, nor could it obligate states to create their own laws criminalizing the substance.
Washington and Colorado have opted to remove some of the state criminal penalties that they independently imposed for marijuana, and to implement a system for determining which dispensaries and suppliers are breaking their new state laws by licensing those that follow their rules. The purpose of this licensing and regulation scheme is to determine which actors are criminally liable – not to aid and abet individuals in violating federal law. None of this, of course, shelters those dispensing or possessing marijuana from prosecution under federal law, which is why many public figures have urged appropriate use of prosecutorial discretion, and even a change to federal law. But it does mean that those state officials merely implementing the rules should not be subject to prosecution.
Bonner’s assertion that these laws are in direct conflict with federal law is likewise on shaky legal ground, and his analogy to the DOJ’s immigration challenge is misplaced. In the field of immigration, the federal government’s argument was that it had staked out sole authority in particular areas of immigration policy such that states could not regulate at all. In the field of drug policy this is not at all the case. In fact, the federal government wanted the states to share the burden of enforcing drug policy by imposing their own drug laws. Having permitted the states to regulate drug use as they choose, it cannot now claim that state laws criminalizing some but not all drug use are too lenient for the feds’ liking.
In fact, most of the 18 states and the District of Columbia with medical marijuana laws already have a regulatory scheme in place, and it is worth noting that the federal government has not filed suit to preempt any of these laws, nor has any civil servant been charged or convicted of aiding and abetting drug use.
Bonner and the other former DEA officers who signed the letter are part of a group called Save Our Society From Drugs, which describes itself as committed to defeating “ballot initiatives, statutory proposals and other attempts to ‘medicalize’ unsafe, ineffective and unapproved drugs.” It refers to medical use of marijuana as a “scam.” The group funded ads countering Colorado’s ballot initiative, and is bankrolled by a GOP mogul who once led a drug-rehab facility shuttered over egregious child abuse allegations.
In the letter accompanying this press release, the S.O.S. members called on Judiciary Committee leaders Patrick Leahy (D-VT) and Chuck Grassley (R-IA) to chastise Holder for his approach to marijuana enforcement. But neither senator took them up on their suggestion, with Leahy instead expressing hope that marijuana enforcement would not be a priority so long as sequester-imposed budget constraints limit the DOJ’s ability to maintain even a basic level of safety. Holder reiterated a recent comment that the DOJ would announce its marijuana policy “relatively soon.”