Prop. 19: Holder says no

Unsurprisingly, Attorney General Eric Holder announced today that the Federal government would not acquiesce if California decided to legalize recreational cannabis, as provided for in Proposition 19.

Some reporters are treating this as inconsistent with Holder’s earlier decision not to bother California’s “medical marijuana” industry, but that’s an error. No matter how transparent the fig-leaf of medical use covering the nakedness of the billion-dollar industry, medical use is exempted from the international drug treaties and the regulation of medical practice (as opposed to the approval of pharmaceuticals) has long been a state, rather than a federal, preserve. Just as important, “medical” cannabis sells at more or less full dope-dealer prices, while if Prop. 19 were allowed to take effect without Federal interference the retail price of high-grade weed would (according to RAND) be about $40 an ounce, more than an 80% discount compared to the current $300. At that price, California cannabis would flood the nation.

It wasn’t hard to figure out that the feds weren’t going to hold still for that.

But what does Holder’s annoucement mean in practice?

It means that the commercialization provisions of Prop. 19 – taxation and regulation via local option – are a dead letter. Presumably the Justice Department would ask for an injunction barring any California official from issuing a license – in effect, a license to commit a federal felony – under Prop. 19, and I expect that the courts would issue such an injunction. Even if no injunction issued, any grower or retailer who filed California tax or regulatory paperwork would be confessing to a federal felony. So there wouldn’t be open commercial growing or (non-medical) sale.

That doesn’t effect the home-growing provision of Prop. 19: anyone who owns or leases property could grow one 5’x5′ plot per parcel. Since that activity will be legal under state law, state and local cops won’t be able to investigate, and there’s no way the feds have the resources to deal with 25-square-foot grows.

The big question left unresolved by Holder’s announcement is the behavior of state and local cops with respect to commercial growing and (non-medical) retailing. If no county or municipality can issue a license, that activity will remain illegal in California. If California law enforcement continues to enforce those laws vigorously, nothing much will change. If not, there’s no way to put enough Federal resources in the field to make up for the absence of state and local enforcement, and California will become the cannabis supplier to the rest of the country, and probably Canada.

I still have no idea whether the proposition is likely to pass, though InTrade gives it two chances in three. Nor do I know how I’m going to vote on it, though the more likely it is to pass the less inclined I will be to help.