After the passage of Amendment 64, legalizing recreational Marijuana in Colorado, Governor Hickenlooper, who actively opposed the measure, dodged his responsibility as Chief Executive to assert the authority of Colorado in making its own laws. Instead he established a committee to develop regulations that he hoped would be acceptable to the Department of Justice.
Many who supported the passage of Colorado’s Amendment 64 are celebrating Attorney General Eric Holder’s response to Hickenlooper. Last week the Attorney General released a memorandum in which he established a series of “priorities” for the enforcement of laws relating to recent marijuana legalization efforts in Colorado and Washington state. It lays out an enforcement regime that will be on a “case by case basis” with out any reference to the law of the United States or the Colorado Constitution. The memo also detailed a series of threats to the marijuana industry and to the state of Colorado should the federal government feel that its power was not recognized. The former brewer called the missive a “thoughtful approach”.
The Department of Justice explicitly reserved the “right” to sue the states at a later date since Marijuana is still illegal under the Controlled Substances Act. Like a lash to threaten a rebellious child, the DOJ threatens to pursue enforcement action when states fail to craft and enforce a regulatory scheme that meets the approval of Washington DC.
Most the standards laid out by the Attorney General are already embedded in local law and supported by the people. Marijuana is illegal for minors. Marijuana may not be transported across state lines. You may not break other laws while conducting cannabis related business.
But then there is this standout priority for the federal government to pursue, “drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use”.
When did the federal government become involved in enforcing local traffic laws? Colorado has had a robust debate on the best method of enforcing a scientific law against driving while impaired. Is the DOJ going to craft our policy for us? Or can we expect to see TSA VIPR teams deployed to local streets to enforce a federal policy?
There is also this bizzare statement, “A marijuana operation’s large scale or for-profit (emphasis added) nature may be a relevant consideration for assessing the extent to which it undermines a particular federal enforcement priority.” Making money could be the deciding factor as to whether a business is a threat to federal interests!
Federal prosecutors retain discretion for enforcement and prosecution of Federal drug laws. Yesterday’s statement was merely “guidance” rather than a statement of policy. It is also temporary and will remain in effect “for now”. The administration has arbitrarily chosen not to enforce the law. This is becoming routine for an administration that views the legislative function with contempt.
What’s worse than a bad law? A bad law that is only enforced some of the time, in some places, against some people and at the discretion of the executive. Last week’s statement reads “Nothing herein precludes investigation or prosecution … in particular circumstances where investigation and prosecution otherwise serves an important federal interest (emphasis added).” Such a policy is the very opposite of the Rule of Law.
Supporters of personal liberty, the rule of law and federalism should work to have Federal marijuana laws repealed in Congress or overturned via the judicial branch. We won’t be fooled by this reassertion of arbitrary power. We must look for a Governor who will be a leader in this fight for our principles.
Earl Bandy is chairman of the Republican Liberty Caucus of Colorado. A version of this op-ed originally appeared at the RLCColorado.com website.