AG Holder Says Federal Government Will Enforce Marijuana Laws If Prop 19 Passes

marijuana2The US Attorney General has now weighed in, to join local law enforcement in opposing the legalization of marijuana. 

The Justice Department has strongly opposed Proposition 19, and has been pressured by local law enforcement to take a more active stance against the California ballot proposition.

In a letter sent Wednesday, AG Holder wrote, “Let me state clearly that the Department of Justice strongly opposes Proposition 19. If passed, this legislation will greatly complicate federal drug enforcement efforts, to the detriment of our citizens.”

“We will vigorously enforce the CSA against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law,” Mr. Holder wrote.

He argued that such legalization of marijuana in California would undermine the government’s efforts to target drug traffickers, who he says often distribute marijuana alongside cocaine and other drugs.

“We’re not necessarily surprised that the establishment is coming down on the side of the status quo,” said Dale Sky Jones, a spokeswoman for the Proposition 19 campaign, in response to the announcement.

Mr. Holder has indicated that he believes the initiative would be preempted by federal law and would put the US in violation of various drug treaties, in addition to sending an unfortunate message about the war on drugs.

Again, he also noted that prosecutions under the federal Controlled Substances Act remain a priority, writing, “We will vigorously enforce the CSA against those individuals and organizations that possess, manufacture, or distribute marijuana for recreational use, even if such activities are permitted under state law.”

At the announcement yesterday, LA County Sheriff Lee Baca said, “He is saying it is an unenforceable law and the federal government will not allow California to become a rogue state on this issue.  You can’t make a law in contradiction to federal law, as a state. Therefore, Proposition 19 is null and void and dead on arrival.”

However, from a legal standpoint Sheriff Baca is inaccurate.  Proposition 19, like Proposition 215, is not null and void nor is it dead on arrival.  Instead it would shift the burden of law enforcement to the federal government and the FBI.

Given the lack of resources, it seems unlikely that the FBI would be going after individual marijuana users, but rather continue to seek out large-time drug dealers.

As such, most of the arguments put forth by AG Holder seem politically calculated, in order to convince voters to avoid the message, rather than representing legitimate legal issues posed by the US Government.

The passage of Proposition 19, for instance, would not have any bearing on the ability of the government to go after drug dealers, nor would it undermine any efforts to go after drug traffickers.  The federal government would always retain such authority.

As we know from Proposition 215, federal law would not lead to the invalidation of Prop 19. Rather, it supersedes any state law.  That shifts the cost to enforce drug laws from the state government, state law enforcement and state courts to the federal government.

Moreover, contrary to the view expressed by Holder, Prop 19 would likely undermine the ability of drug traffickers to traffic in marijuana in addition to other drugs.  He never explains how it could be that a state legalizing marijuana would impact federal efforts to curtail trafficking.

However, one offshoot of Prop 19 would be that it would allow Californians over the age of 21 to cultivate up to 25 square feet of marijuana.  In so doing, the average user would be able to use his own product or a locally-grown product, rather than trafficked product.  That would actually serve to undermine the drug traffickers, and assist federal drug interdiction efforts.

The feds lack the resources to go after these small-time users and growers, and they also lack the ability to strike down the state law.

The federal government, frankly, has better things to spend its resources on than catching marijuana users.  Thus, it would appear this is all talk and there is very little chance that it end up being the actual policy, should Prop 19 pass.

Polls have consistently shown that roughly half of the state’s electorate favors legalizing marijuana.

However, on Friday, local law enforcement was talking a big game.  The LA Times reported that Sheriff Baca was threatening, even if the law passes, not to uphold the measure and to arrest anyone with a 25 foot plot.

However, Alex Kreit an associate professor at Thomas Jefferson School of Law in San Diego, told the LA Times that Sheriff Baca would essentially be arresting people for acts that no longer violate state law.  “If he does that, he’s inviting lawsuits left and right for unlawful arrest,” he said.

Robert Raich, a lawyer who has handled several medical marijuana cases, argues that the initiative does not violate federal law because it changes enforcement of state law, which is the state’s prerogative.  “Simply because California and the federal government choose to punish an act differently does not mean they have a conflict,” he said. He said it is no different than the state’s medical marijuana laws, which have been upheld in court.

However, he makes the same point I just did, that the DEA could continue to enforce federal drug laws. 

“If the federal government wanted to waste its limited resources trying to prosecute some marijuana facility in Oakland, then nothing would stop them from doing that,” he said.

And that is the bottom line, that unless the courts throw out Prop 19, which they did not do when Prop 215 came to the court system, this discussion is all for show.  Sheriff Baca would have no authority to arrest people for doing what the new law would allow, and the DEA and FBI would lack the resources to go after small-time users.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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34 Comments

  1. Dr. Wu

    [quote]The federal government, frankly, has better things to spend its resources on than catching marijuana users.[/quote]

    One would think so. Even those on this blog who oppose legalization have to admit the war on drugs has been an abject failure and the narco-trafficking in Mexico is scary. Let’s focus our government’s efforts on policies that works rather than ones that don’t

  2. E Roberts Musser

    dmg from yesterday’s article on Prop 19: “In other words, California is not violating any laws or rules by legalizing marijuana.”

    dmg in today’s article on Prop 19: “Mr. Holder has indicated that he believes the initiative would be preempted by federal law and would put the US in violation of various drug treaties, in addition to sending an unfortunate message about the war on drugs.”

    Which is it?

  3. E Roberts Musser

    dmg: “As such, most of the arguments put forth by AG Holder seem politically calculated, in order to convince voters to avoid the message, rather than representing legitimate legal issues posed by the US Government.”

    As such, most of the arguments put forth by AG Holder are in support of obeying existing federal laws. States don’t get to pick and choose which ones they will obey or not obey.

    dmg: “However, one offshoot of Prop 19 would be that it would allow Californians over the age of 21 to cultivate up to 25 square feet of marijuana. In so doing, the average user would be able to use his own product or a locally-grown product, rather than trafficked product. That would actually serve to undermine the drug traffickers, and assist federal drug interdiction efforts.”

    How do you know that person is not going to sell the marijuana he grows rather than keep it for his own use?

    dmg: “However, on Friday, local law enforcement was talking a big game. The LA Times reported that Sheriff Baca was threatening, even if the law passes, not to uphold the measure and to arrest anyone with a 25 foot plot.”

    All Sheriff Baca has to do is call in the feds to make the arrest. The result of all this may be the feds beefing up their DEA agents to make up for CA’s failure, which may just result in higher federal taxes to cover the cost.

    dmg: “”If the federal government wanted to waste its limited resources trying to prosecute some marijuana facility in Oakland, then nothing would stop them from doing that,” he said.”

    And it may do that, just to make its point. So then CA becomes a target of federal law enforcement. Well, that may be one way to get rid of drugs in CA…

  4. hpierce

    [quote]feds beefing up their DEA agents to make up for CA’s failure, which may just result in higher federal taxes to cover the cost. [/quote]

    Yeah, right. How will you be able to tell which increases are do to that, if it happens, as opposed to national health care (which I support) or all the bank/corporation bailouts, and the economic stimulus expenditures? Give it a rest…

  5. E Roberts Musser

    hpierce: “Give it a rest… “

    I find this comment typical of the far left. They are avid propenents of free speech until you disagree with them…

  6. biddlin

    The reason that the feds will still enforce the drug laws is the same as it has always been: Distraction. Appear to be so consumed by the phony war that there are scant resources to commit to any other programs. Whether it’s drugs, politics or religion, there is no better way to steal the treasury and share with your industrialist friends. The D.E.A. and A.T.F. have used the drug war to acquire incredible assets with only cursory oversight from the congress. We should assume that they will not willingly relinquish their cash-cow. The same source drives the large scale criminal operations of our neighbors to the south, and they too will not retreat quietly from the scene. Legalization is far too long overdue, so long that it cannot be accomplished easily. The predictions one hears of prices crashing to $40/ounce are, pun intended, pipe dreams. The distribution and marketing logistics of the product will insure a higher price than that. For the foreseeable future you’ll still have to text your dealer and he’s still going to want $300/ounce. On the other hand, predictions of zombie-like hoards roaming the streets and cars driving through the aisles of The Nugget are also exaggerated. The biggest road hazard is likely to be more people scrupulously obeying the speed limit and coming to a complete stop at signs, only to be rear-ended by some over-amped prohibitionist on her way to work from Starbucks. Nugget will see a 200% increase in sales of Hershey’s chocolate, thanks to the zombie-like hoard roaming the aisles in search of munchies. There will be a greater waiting time in checkout, while patrons try to remember their pin numbers. Alas, my generation’s drugs of choice have gone from marijuana and acid to Metamucil and Pepcid.

  7. Musser

    DPD: actually, David, the Federal Government can direct the state governments to enforce federal law. thus state resources could continue to be used to enforce anti-pot laws, even if 19 passes.

    DPD: “told the LA Times that Sheriff Baca would essentially be arresting people for acts that no longer violate state law.”

    but violate Federal Law, so that point is moot.

    DPD: prerogative. “Simply because California and the federal government choose to punish an act differently does not mean they have a conflict,” he said. He said it is no different than the state’s medical marijuana laws, which have been upheld in court.

    the Feds could shut down medical marijuana if it chose to. simply because CA got away with medical marijuana, doesn’t make it valid.

    And that is the bottom line, that unless the courts throw out Prop 19, which they did not do when Prop 215 came to the court system, this discussion is all for show.

    no. the bottom line is Federal law trumps state law. if 19 passes and people get to have marijuana, then arguably other states should be able to pass their own laws which also violate existing Federal laws. This is overturning the results of the Civil War, something Abraham Lincoln was shot over. It also makes it difficult for you to then argue, that a state like arizona for example, cannot violate Federal Immigration laws. it is going down a dangerous slippery slope.

  8. hpierce

    Elaine… with all due respect… you are either very far “right”, or self-righteous (I doubt, both). I didn’t challenge your view of whether the proposition is right or wrong. What I challenged was your ‘economic’ argument that implied we should vote against the measure to avoid higher taxation. Be be blunt, that is a BS argument. There are many good arguments for and against. BTW, those on the far left would consider me a flaming conservative, those in the far right would consider me a flaming liberal. Those of us in the middle are growing toward being the majority and we’re getting sick & tired of self-righteous advocates of narrow interest groups.
    [quote]They are avid propenents (sic) of free speech until you disagree with them… [/quote] Ever look in a mirror?

  9. Musser

    hpierce: BTW, those on the far left would consider me a flaming conservative, those in the far right would consider me a flaming liberal.

    if you supported the health care plan, I sure as hell doubt you’re a centrist.

    hpierce: What I challenged was your ‘economic’ argument that implied we should vote against the measure to avoid higher taxation. Be be blunt, that is a BS argument.

    no BS about it. Alcohol has brought us social and economic costs of traffic deaths (most are DUI’s) domestic violence and broken homes, and poverty. cigarettes are constantly being taxed because the benefits to the state are not outweighing the health care costs. now add cheap easily accessible weed into the equation. When all of those costs balloon, who do you think is going to pay for it all? John Q. Taxpayer.

  10. Rich Rifkin

    The federal government’s position on Prop 19 is laughable.

    Think about the preemption question, the one dubiously raised by David Musser in his Enterprise op-ed. Why would 19 be a case of conflict preemption when the courts have already ruled that 215 and similar initiatives in other states is not?

    Second, when was the last time a person who, say, was pulled over for a traffic violation and was found to have in his car a quarter-ounce of marijuana, was charged in federal court for possession of a controlled substance? My guess is that this has NEVER happened, unless the driver was wanted for some other, much more serious crime or he was driving in a national park.

    The cultivation question is going to be interesting. If someone is growing 25 sq. feet of pot in his backyard and he is not in violation of any state or local laws, but is violating federal law, who will enforce that? Clearly, it won’t be the DEA. They not only don’t care about small-growers, but they don’t have the manpower. The most likely answer is it will continue to be local yokel cops, like YONET, who thrive on federal grants. I don’t think, if 19 passes, state lawmakers will fund the local cops. But if they are getting federal money, they will run around like idiots with guns and break into people’s homes to arrest them for having pot in their gardens. However, not every community will stand for such a police state. If the people of Yolo County, for example, don’t want homeowners arrested for a federal crime, we will get rid of YONET or direct them to focus on things like crack and meth. I suspect, then, it will be a hodge-podge of enforcement, with some communities sending in the goon squads and others looking askance.

    It will probably be the same hodge-podge when it comes to enforcing distribution laws, just as it is with “medical marijuana” distribution. Some local agencies will crack down; others will be directed not to. The federal agents will have no part of it.

  11. hpierce

    [quote]Alcohol has brought us social and economic costs of traffic deaths (most are DUI’s) domestic violence and broken homes, and poverty. cigarettes are constantly being taxed because the benefits to the state are not outweighing the health care costs. now add cheap easily accessible weed into the equation. When all of those costs balloon, who do you think is going to pay for it all? John Q. Taxpayer. [/quote]

    Non sequiter…

    [quote]which may just result in [u]higher federal taxes[/u] to cover the cost. [/quote]

    I did not say that there would/would not be costs. Whether they would be offset by the current costs for “prohibition” in terms of enforcement, judicial proceedings, incarceration etc., I do not know. Those are fair arguments.

    I still stand by my my challenge of your “federal taxes” straw-man. I have attacked your statement. You are borderline attacking me, and you have NO IDEA (yes, I know I’m yelling) what I believe or stand for.

    I perceive (note I do not say ‘know’) that you have challenged people for not supporting senior issues even if they may be wrong place, wrong time. You say I object to free speech unless it agrees with my view. I do not. I hate factual errors, unsupported assumptions.

    You seem to need to denigrate me to justify your views, whether your facts can support them or not. I disengage.

  12. Rich Rifkin

    MUSSER: [i]”Alcohol has brought us social and economic costs of traffic deaths (most are DUI’s) domestic violence and broken homes”[/i]

    So why are you not writing op-eds calling for the arrest of Joseph Coors and August Busch? Why are you not preaching in favor of Probition of alcohol? Why is it that you favor a very dangerous drug with very serious consequences to be legal for adults, but you want to ban a much less toxic drug?

    Is there any way to conclude that anyone who would hold such a confused and inconsistent position is not driven by his bias, rather than logic?

  13. Mr.Toad

    The feds saying this is so obvious because the Supreme Court said medical marijuana was ok but recreational use was not. The courts will put in an injunction restricting recreational use until it is resolved. Still passing 19 is just one more milepost on the road to legalization. Something that should have been done years ago.

  14. Rich Rifkin

    [i]”The feds saying this is so obvious because the Supreme Court said medical marijuana was ok but recreational use was not.”[/i]

    You have this wrong. Federal law says medical marijuana is illegal, too. The court case, San Diego County vs. San Diego NORML ([url]http://www.safeaccessnow.org/downloads/SanDiegoDecision.pdf[/url]), decided that a state decriminalizing pot does not preempt the federal Controlled Substances Act. This was decided by California courts and was not overturned by any federal courts.

  15. Rich Rifkin

    One more thing, Toady: the only case in which the US Supreme Court ruled on medical marijuana, it specifically said it was “not okay ([url]http://articles.cnn.com/2005-06-06/justice/scotus.medical.marijuana_1_medical-marijuana-angel-raich-diane-monson?_s=PM:LAW[/url]).” But that is not the question here. The question is state law: does a state have to make marijuana possession, cultivation and distribution illegal just because the feds made them illegal? And the clear answer is: no. A state has every right to allow those activities. It’s up to the feds to enforce federal laws (though local police agencies can act on their behalf, if they choose to).

  16. Mr.Toad

    http://www.salem-news.com/articles/may182009/asa_cal_law_mj_5-18-09.php

    RR you are behind the curve with your 2005 reference. If you read the actual decision that was upheld in the 2009 case cited above you will find out that the supremes upheld states rights to have medical marijuana despite Federal Law but that recreational use is not protected as I stated above. This undermines arguments to the contrary made here by others. It also undermines the idea of recreational legalization although prop 19 takes this possibility into account and has language to address the issue albeit not language that would make recreational use legal in conflict with federal law.

  17. Rich Rifkin

    Toad, you don’t understand what you are talking about. You don’t seem to even read the articles you cite. The federal courts did not rule on “medical marijuana vs. recreational use.” (I read the entire decision which I linked above.) The decision in San Diego NORML regards preemption. The state court and 4th District Court of Appeals agreed that the state law legalizing marijuana for medical purposes does not preempt the federal CSA. However, federal law has not changed in any respect. The federal law continues to ban all consumption, manufacture and distribution of marijuana, regardless if it is for medical use or recreational uses. There is NO DISTINCTION in federal law.

    As such, the San Diego NORML case says that if a state legalizes marijuana FOR ANY USES, it is not preempting the CSA. If 19 passes, it will not preempt the CSA. But just because it does not preempt the CSA does not mean that federal law enforcement agents cannot enforce federal drug laws in California. They can. So if you decide to grow pot in your back yard, which would not be a state or local crime, you could be arrested by federal agents for breaking the federal laws. And that is true for clinics today which sell medical marijuana. They are violating federal laws and can be arrested by federal agents.

  18. Rich Rifkin

    Toad, an example of just such a federal action against a medical marijuana dispensary took place last week in So. California, where federal agents “seized 35 marijuana plants, 78 pounds of processed pot, seven gallons of concentrated cannabis oil and 4,000 pre-packaged, marijuana-laced edible products, with a total value of about $350,000.

    “The raids took place at five medical marijuana clinics, two processing sites, a grow site and a sailboat in Los Angeles, Orange, Riverside, and San Diego counties.”

  19. E Roberts Musser

    hpierce: “Give it a rest…”

    erm: “They are avid propenents (sic) of free speech until you disagree with them…

    hpierce: “Ever look in a mirror?”

    “Give it a rest” says to me you want me to shut up. I’m not quite sure how one can take your statement any other way. What other possible interpretation could there be? If you meant something else by “Give it a rest…”, please explain.

    Yes, I’ve looked in the mirror. I have never told anyone to “Give it a rest….”, bc I firmly believe everyone has a right to express their opinion, even if I don’t agree with it.

    hpierce: “Elaine… with all due respect… you are either very far “right”, or self-righteous (I doubt, both). I didn’t challenge your view of whether the proposition is right or wrong. What I challenged was your ‘economic’ argument that implied we should vote against the measure to avoid higher taxation. Be be blunt, that is a BS argument. There are many good arguments for and against. BTW, those on the far left would consider me a flaming conservative, those in the far right would consider me a flaming liberal. Those of us in the middle are growing toward being the majority and we’re getting sick & tired of self-righteous advocates of narrow interest groups.”

    You’ve called my argument BS, but have not addressed it substantively :-0

  20. E Roberts Musser

    RR: “Toad, you don’t understand what you are talking about.”

    Why the personal attack? Can’t you simply say you disagree? Geeeeeze. Let’s keep things civil…

  21. E Roberts Musser

    There was a very interesting article on global warming. One of the points the author made is when an opponent is losing an argument, they begin a personal attack, because the opponent has failed in giving logical arguments so has to resort to name-calling.

    To hpierce: As to my political affiliation (I don’t know what that would have to do with anything), I have none. I am strictly an “issue man”. I judge each issue on its merits according to my core beliefs, which don’t align with any political party entirely. And I strongly believe in the golden rule: Treat others as you would like to be treated. Simple philosphy 🙂

  22. Frankly

    [quote]“The Fed’s position on this is ridiculous. We need to vote in a pure Democrat majority to ensure we change our idiotic and failed attempts to criminalize this naturally growing weed.”[/quote]
    Note: this was a Bush-era post I plagiarized.

  23. Rich Rifkin

    [b]RR: “Toad, you don’t understand what you are talking about.” [/b]

    [i]Why the personal attack? Can’t you simply say you disagree? Geeeeeze. Let’s keep things civil… [/i]

    When Toad does not know what he is talking about, it is perfectly decent of me to let him know that. Letting him continue to not understand the issue would be mean. My intent is only to enlighten him on this subject.

    However, your personal attack on me for informing Toad is definitely rude and uncalled for. You have no need to attack me and accuse me of being uncivil when I was not addressing you or harming Toad. Your interference in my civil discussion with Toad is a violation of my Golden Rule.

  24. Musser

    hppierce: still stand by my my challenge of your “federal taxes” straw-man. I have attacked your statement. You are borderline attacking me, and you have NO IDEA (yes, I know I’m yelling) what I believe or stand for.

    you said you agreed with universal health care, so I have somewhat of an idea.

    Rich Rifkin: “The state court and 4th District Court of Appeals agreed that the state law legalizing marijuana for medical purposes does not preempt the federal CSA.”

    that doesn’t make it so. the feds allowed the states to get away with it. doesn’t mean the medical use of marijuana is legit. furthermore the so called “medical use” of marijuana has a track record of getting into the hands of people who shouldn’t have it.

    Rich Rifkin: There is NO DISTINCTION in federal law.

    exactly. thank you rich.

    Rifkin: So why are you not writing op-eds calling for the arrest of Joseph Coors and August Busch? Why are you not preaching in favor of Probition of alcohol? Why is it that you favor a very dangerous drug with very serious consequences to be legal for adults, but you want to ban a much less toxic drug?

    first of all, you don’t know what I believe when it comes to alcohol, and you don’t know what I preach in that department. you are making assumptions about my beliefs about cigarettes and alcohol just because I am preaching against pot use. don’t put words in my mouth. what it appears to me is that you want to talk cigarettes and alcohol because you don’t want pot attacked. thus you wish to change the subject.

    furthermore, YOU ARE MAKING THE CLAIM that marijuana is less toxic. just because you say it is doesn’t make it so. I read what marijuana does to people, and it is hardly benign. it intensifies colors more than usual, and also causes people to hallucinate. it also slows reaction time. hardly my idea of a harmless substance.

    furthermore, as I pointed out, mixing marijuana with alcohol multiplies the effects of both substances, which is hardly what we need on the road.

    Rifkin: Is there any way to conclude that anyone who would hold such a confused and inconsistent position is not driven by his bias, rather than logic?

    again, you make the claim on what I stand on cigarettes and alcohol, even though I haven’t said a damned thing on those things. you are setting up a straw man here, which shows your bias and the depths to which you will stoop to make yourself look big.

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