By Chris Reed.
The Trump administration has made clear that it will not look the other way when it comes to de facto state legalization of marijuana, as the Obama administration did. Instead, White House press secretary Sean Spicer last week said the states that have approved the use of recreational pot – California is one of eight – would face a reckoning because marijuana use remains a federal crime under the Controlled Substances Act.
State Democrats immediately denounced the possibility of a federal crackdown and took a defiant tone, starting with Lt. Gov. Gavin Newsom, a key sponsor of Proposition 64, the ballot measure approved with 56 percent support in November that sets up the framework for legal pot sales and use beginning Jan. 1, 2018. Newsom released a letter that called Spicer “grossly uninformed” for saying legal pot could make the opioid epidemic worse and warned that a federal intervention would help “drug cartels and criminals” by keeping the sale of marijuana a black-market, illegal practice.
Xavier Becerra, recently installed as state attorney general, also vowed in a statement that he would “protect the interests of California” from federal intrusion.
A Los Angeles Times report quoted attorneys as saying California could argue that it has a legal right to control drug rules within its borders.
Constitution gives federal government final say
But legal websites and U.S. history suggest that a federal government that is determined to enforce federal laws would be a very difficult obstacle for a state to overcome.
“The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the ‘supreme law of the land,’” the FindLaw website notes. “This means that judges in every state must follow the Constitution, laws and treatises of the federal government in matters which are directly or indirectly within the government’s control. Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict.”
A federal crackdown could come in several forms:
- Drug Enforcement Administration agents could stage raids on pot farms and dispensaries, as they did memorably in 2012 at Oakland’s massive Oaksterdam medical pot outlet. U.S. marshals and IRS agents joined in the raid.
- Federal authorities could warn property owners that their land and buildings would be seized unless they evict pot farmers or dispensaries.
- The federal government can compel cooperation through a lawsuit. An Associated Press analysis noted that this is what happened in 2010, when a federal suit forced Arizona to scrap an immigration law that the Justice Department said trampled on federal authority.
- The federal courts can also compel action, such as what happened last year in Kentucky, when a county clerk who objected to issuing licenses for same-sex marriage was overruled.
- The Treasury, Justice and Homeland Security Departments can all use existing laws to hammer banks and credit unions that accept deposits that can be linked in any way to marijuana-generated funds or if they provide any services to dispensaries. “Financial institutions face significant risk for violating federal law if they offer banking services to marijuana-related businesses,” an American Bankers Association web page warns. “The federal statutory barriers include the Controlled Substance Act, USA Patriot Act, Bank Secrecy Act, Racketeer Influenced and Corrupt Organizations Act and other federal statutes.” The RICO law in particular gives law enforcement wide latitude to classify activities that may seem in a gray area as illegal, which is why it’s long been a target of advocates of legal reform.
These five ways the Trump administration could crack down on a state attempting to legalize recreational drug use are only the short list. In an era in which sweeping executive orders have become the norm, Attorney General Jeff Sessions – an ardent foe of legal pot – could ask President Trump to withhold federal funds for law enforcement or health programs from defiant states.
While Spicer was emphatic about a new federal approach to state marijuana laws, he offered no timetables for action. Sessions has so far focused on other issues in his first weeks at the Justice Department.
Originally posted at Cal Watchdog.