Two Intriguing Developments in Marijuana Legalization

Oakland City Council’s decision not to go forward with a plan to let private companies start enormous “medical” pot farms has two intriguing subplots.

First, the Alameda County Attorney advised the members of the council that it was not clear whether they would be immune from federal prosecution if they approved the plan. This issue hasn’t come up yet because Prop 19 lost, but assuming some state goes pro-pot, it’s an inevitability. If a mayor or city council creates a system regulating cannabis production that is legal under state law and tries to tax it, will federal agents arrest them under federal drug trafficking statutes? I don’t think it’s a question of whether this would be legal but whether a federal prosecutor would be willing to take the political heat this would generate.

Second, small pot growers apparently lobbied the council not to pass the plan for mega-farms. Most analyses of the medical marijuana movement assume that the pot growers would become the vanguard for full legalization. But if you are a small grower, a big corporate producer of medical marijuana will easily be able to under-sell you and thereby reduce your profit. And if there is full legalization, small growers will be in the same position as small family farms trying to stay afloat in a market dominated by massive corporate farms. Some people were shocked that a number of small growers (and dispensary operators) opposed Prop 19, but that may become the normative stance over time once the implications of a corporate presence are more widely understood.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College Lonon. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over ten thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

8 thoughts on “Two Intriguing Developments in Marijuana Legalization”

  1. The idea of devoting large areas of valuable housing land in Oakland, with subway access and sewers already installed, to pot growing – this is ridiculous. Pot should be grown on former tobacco land in the Carolinas, and maybe down by Fresno. This will take care of the despoilation of Mendocino, as well, which ought to be wine country. Not to mention rescuing Mexico from the gangs. It's all good.

  2. Wouldn’t Sovereign Immunity stop federal prosecution of city/county/state officials acting under state law?

    This is the great unanswered question of marijuana regulation. Raich holds that the federal government can definitely override state laws in order to enforce marijuana prohibition. However, another line of cases, including New York v. United States and United States v. Printz, holds that even where the federal government can override state laws, it cannot commandeer state governments to enforce federal laws.

    Accordingly, the more that state and local marijuana legalizations are placed in the hands of state officials, the less constitutional authority the federal government has to stop it. I can actually say with some degree of confidence that if a state decided to grow and sell marijuana itself, and actually committed itself to that policy, there would be nothing short of a civil war that the federal government could do to stop it. I do not know, however, how the courts would handle state actions short of that.

  3. Wouldn’t Sovereign Immunity stop federal prosecution of city/county/state officials acting under state law?

    No. Consider, for example, the officials of a hypothetical state called "Mississippi" acting under a hypothetical law called "segregation."

    This has been another edition of Simple Answers to Simple Questions.

  4. Ebenezer, I think you're being too flip there. I'm hardly an expert, but I'm not aware of Mississippi government officials being prosecuted (or even sued civilly as individuals, though I suppose some of that must have happened) for violations of federal civil rights they'd perpetrated in accordance with local law. Federal force was (rightly!) used to enforce mandated changes of law and of policy, and I suppose that money spent on extra, segregated facilities might have been wasted (although even there, I have no idea whether the segregation was statutory or was "merely" enforced by governmentally condoned, society-approved terrorism and lawless police), but I don't think the officials who put them in were prosecuted. I'd certainly be pleased to learn otherwise, but I can't recall reading of the crafters or perpetrators of even the most egregious official actions (all the barriers to Black voter registration, for example; I'm counting murder and outright intimidation and the like not being official actions) ever being prosecuted, just that the official actions had to change.

    I mean, I suspect you're right that the Alameda county officials have something real to worry about – but I'm not sure your example proves it.

  5. Also in response to Ebenezer, Section 5 of the Fourteenth Amendment specifically overrides sovereign immunity and grants Congress the power to enforce laws against segregation.

    In contrast, New York v. US and Printz are premised on the idea that there is no similar override of state sovereign immunity outside the Fourteenth Amendment context. You can also look at the College Savings Bank case (holding that state officials cannot be sued for violations of intellectual property laws) to see this play out.

    With respect to marijuana prohibition, under Raich, the federal government has the power to prohibit it even if state laws permit it. But that doesn't mean there's any constitutional power to arrest or punish state officials who violate federal laws in their official capacity.

  6. I'm in no way a legal expert, but I would appreciate the comments of the others on this thread about the following question: The prohibition of alcohol was buttressed by the 18th amendment. Why does the prohibition of marijuana not also require a constitutional amendment?

  7. Mel:

    Alcohol prohibition occurred during a time when the commerce clause received a narrower interpretation by the courts. You would not need an amendment now.

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