Tolerating pot with a frown: why the feds had little choice but to let legalization happen.

• Author: Sullum, Jacob
• Position: Columns - Marijuana legalization - Column

AT THE END of August, 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. A couple of weeks later, 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 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, since 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 Colorado and Washington have written for marijuana growers and sellers. 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, since it would leave the industry legal but unregulated. Still, he said, "we reserve that right to preempt" should state regulation prove to be insufficiently...