The Friday court ruling that upheld Fife’s right to ban marijuana stores dismayed champions of Initiative 502 and pleased state Attorney General Bob Ferguson. Yet Ferguson was also defending the initiative. What gives?
The difference was shrewdness.
The ACLU and other authors of I-502 seem to regard legality as a done deal that merely requires the slapping down of reluctant local jurisdictions. But Ferguson believes the initiative that legalized marijuana is still on a tricky path around a wary U.S. Justice Department. He’s adopted a cautious, tactical strategy aimed at keeping cities like Fife from challenging the state law in a federal courtroom.
His caution is justified. Some Washington appear to have forgotten the fact, but the U.S. Controlled Substances Act explicitly outlaws marijuana. After I-502 passed, Washington’s two U.S. attorneys general made a point of reiterating that the drug remains illegal under federal law.
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They said, in very guarded terms, that they had no specific plans to prosecute state-licensed pot enterprises. They also said that could change if the legalization scheme ran afoul of federal anti-drug priorities – by feeding the interstate black market, for example, or by ratcheting up marijuana use among minors. There were no promises, and the post-Obama Justice Department may not prove as accommodating.
The most optimistic I-502 supporters believe there’s some loophole in the Controlled Substances Act that gives states free rein to do their own thing. If true, that supposed loophole would also give states the latitude to legalize heroin and cocaine, drugs that share exactly the same status as marijuana under federal law. Anyone care to defend state-licensed cocaine dealers in a U.S. district court?
Ferguson did not want to crowd the City of Fife into defending its ban in a federal judiciary. An adverse ruling there, he noted, could “eviscerate” I-502.
Some aren’t as worried. State Rep. Christopher Hurst, for one, responded to the ruling with talk about a law that would require all cities and counties to approve licensed marijuana operations.
It might be wiser to require larger jurisdictions – counties, for example, and cities above a certain population – to accept licensed enterprises. An attempt to beat down the insurgents in every last burg in Washington is bound to trigger a federal lawsuit somewhere.
One premise of I-502 was that marijuana should be treated as liquor. Let’s be consistent about that. A small town can ban liquor licenses – some do – without tipping the whole state back into Prohibition.
The Legislature would also be smart to provide cities and counties a share of the tax revenue from marijuana growers, processors and retailers. Many of the local officials who’ve adopted bans and moratoriums complain that they are expected to deal with any problems that may arise without getting any of the taxes – as they do from liquor sales.
In any event, the Fifes of this state aren’t as dangerous for I-502 as the black market and the “medical” marijuana dispensaries that some local governments continue to tolerate. Sanctioned, taxed enterprises can’t compete against unsanctioned and untaxed enterprises if lawmakers and local officials allow the latter to flourish.
Ferguson is right: I-502 faces a continuing threat from the feds. It faces a bigger threat from officials who lack the courage to enforce Washington’s other drug laws.