During a Senate hearing Tuesday, Deputy Attorney General James Cole for the first time revealed the thinking of Justice Department on the state-federal web of marijuana laws, answering questions about its announcement that it would not now file a legal challenge to state marijuana laws. In the process, Cole made a compelling case for why state pot regulation is now the federal government’s least worst option, and echoed the argument of many in Washington and Colorado for why a regulated legalization scheme may be a better alternative to the War on Drugs than decriminalization alone.
Asked by Senate Judiciary Chairman Patrick Leahy (D-VT) how the federal government made its decision about whether to file a lawsuit, Cole explained:
COLE: It would be a very challenging lawsuit to bring to preempt the state’s decriminalization law. We might have an easier time with their regulatory scheme and preemption, but then what you’d have is legalized marijuana and no enforcement mechanism within the state to try and regulate it and that’s probably not a good situation to have.
LEAHY: Kind of an incentive for a black market, isn’t it?
COLE: Very much so, sir. And money going into organized criminal enterprises instead of going into state tax coffers.
He added in a later question from ranking Judiciary Committee Republican Chuck Grassley (IA) about reports that Colorado’s medical marijuana regulation is insufficiently rigorous:
If we just went after the regulatory scheme, instead of just having a bad one, they’d have no regulatory scheme. Our hope is that with this memo and with the engagement with the state, telling them that they are, as we say, trust but verify, that they will have an incentive to actually put in a robust scheme … We’re hoping that that kind of effort by the state in enforcing its own state laws will have a better effect than having no effort whatsover.
Cole’s tactic to encourage stronger regulation may be working already. Reassured by the Justice Department’s recent guidance that it would not prioritize those marijuana operators regulated by a “strong and effective” state system, California legislators introduced two bills this week to bulk up its own state laws, including the creation of a new state agency to oversee the medical marijuana program and a mandatory state registration program for marijuana operations. While California was the first state to pass a medical marijuana law, its current law imposes only a voluntary state registration scheme, while many localities have implemented their own more specific or mandatory licensing schemes. Other states that have likewise been wary to invest more into a regulatory scheme that has been undercut by unpredictable federal prosecutions may now move forward to refine their medical marijuana regulations.
Cole rightly explains that the federal government would be hard-pressed to preempt a state law that opts not to impose criminal penalties marijuana. While the federal government can prohibit a substance and ask the states not to undercut it, it cannot require the states to do its enforcement for it, or to follow the same policy the federal government follows. Suing to challenge an affirmative state marijuana regulation scheme does have somewhat better chances of success, but states have argued that their regulatory systems do not undercut federal prohibition; they merely are a means for discerning exactly who is breaking their more refined law and enforcing drug crimes against that limited population. This is a viable argument supported by prominent legal scholars, meaning even a partial legal challenge to state marijuana laws would be tenuous at best.
Cole could have left his remarks on federal preemption at that. But he went beyond that to argue that as a matter of policy, too, a state regulatory scheme is better policy than a violent, money-sucking black market — at least in a world where marijuana is decriminalized. Cole’s remarks for the first time echoed the arguments of law enforcement officials in Washington and elsewhere who endorsed legalization schemes — a shift not lost on reform advocates.
“It feels like there’s a paradigm shift underway in the Justice Department’s interpretation of federal drug control law,” the Drug Policy Alliance’s Ethan Nadelmann said Tuesday. “They seem to recognize that drug control should be first and foremost about protecting public health and safety, and that smart statewide regulatory systems of the sort that Colorado and Washington are proposing may advance those objectives better than knee-jerk enforcement of federal prohibitions.”