Rich people frequently get their way in politics, and will probably do so with Proposition 19. Another Croesus has written a big check to the pro-side, which has outspent the opposition by at least 10-to-1. As it becomes more likely that the Proposition will pass, increasing pressure is being put on Attorney General Holder to make a pre-emptive statement that the Department of Justice will sue to block implementation. The latest example is from former DEA administrators (Every single one of them! Give someone major props for cat herding…) in the Wall Street Journal.
The Arizona immigration law is getting invoked as the precedent for federal intervention, but the cases arenâ€™t really perfectly parallel. States have some discretion in how much they mirror federal laws in their state lawmaking and enforcement, as long as they do not actively create a “positive conflict.” I am not a constitutional scholar, but I think it is an open question (probably a Supreme Court case in the end) whether the federal government can make a state actively enforce the Controlled Substances Act. Maybe it can’t.
In contrast, the federal government would seem to have a slam dunk case going after any county or city that set up a regulatory and tax system, because they would be actively facilitating and profiting from a felony. But that becomes a tough call for an intervention-minded fed â€“ if all you can do is stop regulation but not the underling legality of a drug, do you in fact make that decision and thereby stop the only potential barrier to things running wild?
One possible outcome, which multiple commenters on this site have cogently put forward in recent weeks, is the â€œsmall grow bank shotâ€. By this I mean that the Proposition passes, the AG clamps down on any city or county that sets up a tax system and any company that tries to generate a major commercial enterprise, and what you end up with is a non-commercial, grow your own supply policy. I am not convinced that this is a good policy, but I recognize that some very smart people (e.g., Mark Kleiman, Martin Iguchi, and some RBC commentators whom I know only by your usernames) think this is the best way forward.
Even if I were sure you all were correct, I would vote against the Proposition because I would not vote for something that had a 1 in 3 chance of producing an outcome I wanted after my cash-strapped state had spent a zillion bucks fighting a federal lawsuit. Note also that in the bank shot scenario, that money is never replaced because the state gets zero tax revenue. Nonetheless, I recognize that some smart and decent people will look at these facts and come to the opposite conclusion.
The other possible outcome is that AG Holder (and note this is rank speculation, I have not discussed this with him and have no idea what he will decide in the end) does not intervene at all. In that case the coming years will see either Big Tobacco having a line of lucrative, well-marketed cannabis products, or, a new industry created that more or less conducts itself like Big Tobacco.