Jacob Sullum

Last month, 296 days after voters in Colorado and Washington decided to legalize marijuana, the U.S. Justice Department responded with a memo that leans toward accommodation rather than confrontation. Last week, testifying before the Senate Judiciary Committee, the author of that memo, Deputy Attorney General James Cole, explained why the feds decided to live with legalization: They had no viable way to stop it.

Pot prohibitionists had urged the Justice Department to file a lawsuit aimed at pre-empting the new marijuana laws under the Controlled Substances Act (CSA). But even if we accept the excessively generous reading of the power to regulate interstate commerce that allows continued enforcement of the federal ban on marijuana in states that have legalized it, the CSA limits pre-emption to situations where there is "a positive conflict" between state and federal law "so that the two cannot consistently stand together."

As Cole explained, states do not create such a conflict merely by choosing not to punish marijuana cultivation, possession and distribution, because that does not stop the federal government from enforcing its own ban. "It would be a very challenging lawsuit to bring to pre-empt the states' marijuana laws," he said.

Cole suggested the Justice Department would be on firmer ground if it sought to overturn the regulations that Colorado and Washington have written for marijuana growers and sellers, presumably because those rules suggest official approval. That's debatable.

As Vanderbilt University law professor Robert Mikos explains in a Cato Institute paper published last December, "a positive conflict would seem to arise anytime a state engages in, or requires others to engage in, conduct or inaction that violates the CSA." If state officials supplied medical marijuana to patients, for example, they would be violating the CSA, and the law establishing that program would be pre-empted.

But specifying the conditions for exemption from state penalties does not require anyone to violate the CSA. Mikos concludes that Congress "has left (states) free to regulate marijuana, so long as their regulations do not positively conflict with the CSA."

Even if the Justice Department could prevent Colorado and Washington from licensing and regulating marijuana businesses, Cole said, that outcome would not necessarily be desirable, because it would leave the industry legal but unregulated. Still, he said, "we reserve that right to pre-empt" should state regulation prove to be insufficiently strict.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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