Gene Johnson writes about the meeting today in the other Washington:
SEATTLE (AP) — Washington Gov. Jay Inslee and Attorney General Bob Ferguson met with U.S. Attorney General Eric Holder on Tuesday, but came away no further enlightened about how the federal government will respond to last fall’s votes in Washington and Colorado that set up legal markets for marijuana.
Inslee said the meeting with Holder was collegial and the attorney general asked a lot of questions but gave no indication about when the DOJ might make a decision. Colorado’s governor did not attend.
“I went into this believing that our state should continue to move forward with our rulemaking process,” Inslee said. “Nothing I heard during that discussion dissuaded me of that view.”
During a speech in early December, Holder said the DOJ would have a decision relatively soon.
The fact that Holder didn’t make any attempt to stop Inslee and Ferguson from trying to implement I-502 is certainly a positive sign. Holder has to know that the consequences of allowing Inslee and Ferguson to move forward for months and then later decide to use the courts or some other means to shut it down will be embarrassing both to the Obama Administration and to their fellow Democrats in Olympia. Nothing that cynical is likely to happen.
But the fact that Holder gave no additional assurances regarding the federal government’s response makes me a little concerned about what will happen when people start participating in this new above-ground market. This is an important point:
Inslee described the meeting as the opening of an ongoing conversation. He said he gave Holder details of the role of state employees — noting that although they issue licenses to private entities, they won’t be charged with handling or distributing the weed.
This is key because it gets down to some of the more nuanced legal aspects involved. Most (but not all) attorneys I’ve heard from don’t believe that the feds can legally pre-empt the state and arrest workers merely for setting up and carrying out regulations. The only thing that’s pre-emptible is actual participation in the marketplace (and thanks to Raich vs. Gonzalez, privately growing or even merely possessing marijuana is within that definition).
This concerns me because it’s entirely possible that Holder simply doesn’t care about either Washington or Colorado sets up regulations because he’d likely lose that battle in the courts. He may just be biding his time until licenses are given out and then allowing prosecutors to go after growers and sellers he knows he can win cases against. That also may be too cynical an expectation, but after the experiences in Obama’s first term regarding medical marijuana, the cynicism might be justified.
As Obama began his first term, he re-iterated a promise that he – and every other Democratic hopeful in 2008 – made regarding medical marijuana. He wouldn’t use DOJ resources to undercut the various state laws that made it legal. However, over time, that promise was repeatedly violated and a number of folks who were complying with their state laws are now facing long jail terms.
But this turnaround wasn’t the result of a top-down decree by either Obama or the DOJ. This was a bottom-up attempt by various U.S. Attorneys and other folks in the embattled drug war bureaucracy to find ways to circumvent the intent of that decree. In states like California and Montana, the meaning of the state law was ignored and even actively undermined. But in states like Colorado and New Mexico, it was largely respected. And here in Washington, there was even a noticeable difference between the aggressive enforcement in Eastern Washington and the saner approach in Western Washington.
And it was more than just enforcement. We also saw attempts from various institutional drug war tools to scare some state politicians away from regulations that they knew would be impossible to undermine. This is what happened to both Governor Gregoire and Rhode Island Governor Lincoln Chafee as each of them attempted to establish more concrete statewide medical marijuana regulations.
So until there are actual assurances from Holder (and maybe not even then) that our state laws will be fully respected, there’s definitely a concern about what various lower level drug warriors in the DOJ and the DEA could do once we start handing out the licenses. There would certainly be a political backlash to any attempt to undermine the will of Washington and Colorado voters, but it could be another in a long line of political backlashes that folks in Washington DC barely notice. Or maybe this time will be different. Maybe having state officials like Inslee and Ferguson fighting for the voters of their state will force Holder to keep his folks in line. Still a long way to go before this starts to play out.