Mark Kleiman writes in the LA Times that even if voters in California approve Proposition 19 to create a regulated legal market for marijuana, it still won’t be legal:
Now that California’s billion-dollar ” medical marijuana” industry and its affiliated “recommendationists” have made marijuana legally available to any Californian with $75 and the willingness to tell a doctor that he sometimes has trouble sleeping, why not go all the way and just legalize the stuff for recreational use as proposed in Proposition 19 on the November ballot? Then we could tax it and regulate it, eliminating the illicit market and the need for law enforcement against pot growers. California would make a ton of money to help dig out of its fiscal hole, right?
Well, actually, no.
There’s one problem with legalizing, taxing and regulating cannabis at the state level: It can’t be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can’t legalize a federal felony. Therefore, any grower or seller paying California taxes on marijuana sales or filing pot-related California regulatory paperwork would be confessing, in writing, to multiple federal crimes. And that won’t happen.
From a purely technical standpoint, Kleiman is right. And from a purely technical standpoint, Dick Cheney should be behind bars. The problem with Kleiman’s argument is that when it comes to what the Obama Administration will and will not do, the letter of the law will take a backseat to political considerations. The Obama Administration already demonstrates this by choosing not to go after state medical marijuana providers (both growers and sellers). Despite a few recent raids, marijuana dispensaries are now operating in the open in many more places than they were only two years ago.
Kleiman’s attempt to differentiate this by pointing to international treaties that carve out exceptions for medical use is irrelevant. What the medical marijuana providers do is clearly against federal law, but the Obama Administration chooses not to enforce it. And it’s unrealistic to think that an international treaty that the United States years ago pressured the UN to pass will be used by the international community to force Obama to do something he doesn’t find politically expedient. It’ll never happen. If California passes Proposition 19, the Obama Administration’s hands won’t be tied by anyone or anything. If they think it’s politically expedient to shut it down, they’ll try to do it. If they think it’s not politically expedient, they won’t.
Kleiman makes the case – based on the RAND study from earlier this week saying that marijuana prices in California might plummet – that the Obama Administration would find it politically expedient to shut down any regulated market in California. As he sees it, people will flock to California to buy marijuana on the cheap and re-sell it for higher profits across the country. And as a result, the Obama Administration will have no choice but to shut it down.
On the other hand, California still happens to be the biggest state in the country, and one that Obama would need to win in 2012 to stay in the White House. Having the federal government come in to forcibly overturn a voter-initiative wouldn’t be the smartest move on his part, and it’s one I personally have trouble believing he’d do.