Pubdate: Sun, 18 Nov 2012
Source: Denver Post (CO)
Copyright: 2012 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: Vincent Carroll

KOWTOWING TO FEDERAL AUTHORITY

To appreciate how powerless Colorado may be if the Obama
administration tries to block Amendment 64, you must first go back to
possibly the worst Supreme Court decision of the past decade.

In Gonzalez vs. Raich in 2005, the court ruled 6 to 3 that the federal
government could ban possession of homegrown medical marijuana that
had never crossed state lines or been sold.

The decision was a huge blow to any notion of federalism under the
Constitution's Commerce Clause. If Congress can regulate even
non-commercial, purely intrastate activity under the clause, it can
regulate just about anything. There are no limits to its regulatory
power.

So given the logic of Raich, the Obama administration is free to crack
down even on individuals who under Amendment 64 grow up to six
marijuana plants "in an enclosed, locked space" on their own premises
with no intention of moving it into a retail market.

Under any reasonable definition of federalism, the state should be
able to legalize that activity without any pushback from the Justice
Department - and be able to take the feds to court if they harass
those individuals - but that's not reality under Raich.

Thanks to four liberal justices (who always resist limits to federal
power under the Commerce Clause) and two unprincipled conservatives
(Antonin Scalia and Anthony Kennedy), even growing six plants on your
premises could incite a federal drug warrior.

To be sure, the federal government isn't likely to react often to home
cultivation and consumption under Amendment 64 because it doesn't have
enough agents to double as a local police force. But the fact that it
could gives some idea of the legal balance of power.

No, if the feds are going to restrain themselves from trampling all
over Amendment 64 - and especially the retail stores and growing
facilities that are the amendment's potential Achilles' heel and that
would open in 2014 - the decision will have to be political.
Administration officials must conclude that the political downside and
popular backlash would be too awkward.

That's where Gov. John Hickenlooper and Attorney General John Suthers
could make a difference, by clearly signaling that the state will
deplore any attempt to undermine the amendment. Instead, those
officials seem to be doing the opposite - all but giving the feds a
green light to meddle.

In a letter last week to U.S. Attorney General Eric Holder, for
example, Hickenlooper and Suthers asked the Justice Department "to
articulate its position as soon as possible regarding prosecution of
activities allowed by Amendment 64."

Unfortunately, the letter never once suggests Hickenlooper and Suthers
would like the Justice Department to honor Colorado voters' intent. To
the contrary, it emphasizes punitive options the feds could take, such
as "legal action to block the implementation of Amendment 64" and
prosecuting "grow and retail operations."

"Importantly," they write, "we also need to know whether the federal
government will regard Colorado State employees who regulate and
oversee the growing and distribution of marijuana as acting in
violation of federal law" - never thinking to point out that Holder
need not reach this conclusion and that they would prefer he didn't.

Colorado's top two office holders could have marshaled all sorts of
arguments on voters' behalf - for starters by pointing out that
without grow and retail outlets, Amendment 64 will fail in one of its
primary goals, which is undermining criminal control of the pot trade.

Instead, they adopt the tone of vassals before their
seigneur.

"M'lord," they might as well have written, "the people have spoken
decisively, but we humbly await your paternal word on whether they
will be allowed to exercise their freedom."
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MAP posted-by: Matt