Boy, howdy. Everybody and their brother seems to be making contingency plans in preparation for “fighting Trump” and the various, unspecified threats he’s posing to the nation these days. We’ve seen California hire Eric Holder as a special general to lead the battle against the President of the United States, while the Mayor of New York City is holding training sessions in schools to combat immigration enforcement. And now Colorado’s state legislature is setting up a plan to protect the state’s nascent recreational marijuana industry in case the Department of Justice comes calling with questions about their product line. (Time Magazine)
Colorado is considering an unusual strategy to protect its nascent marijuana industry from a potential federal crackdown, even at the expense of hundreds of millions of dollars in tax collections.
A bill pending in the Legislature would allow pot growers and retailers to reclassify their recreational pot as medical pot if a change in federal law or enforcement occurs.
It’s the boldest attempt yet by a U.S. marijuana state to avoid federal intervention in its weed market.
The bill would allow Colorado’s 500 or so licensed recreational pot growers to instantly reclassify their weed. A switch would cost the state more than $100 million a year because Colorado taxes medical pot much more lightly than recreational weed — 2.9 percent versus 17.9 percent.
This is a rather curious plan if you stop to think about it because it really doesn’t change anything except the optics. The recreational pot industry got off the ground later than the medical marijuana business, but neither of them was really all that different in the eyes of the law at the federal level. Contrary to popular belief in some quarters, marijuana was never legalized in any way by Congress. Some of this confusion comes from the fact that the Rohrabacher-Farr amendment has been adopted a couple of times in federal omnibus spending bills. That particular rider forbids the Justice Department (and the DEA) from “using funds appropriated by the bill to prevent states from implementing their medical marijuana laws.” But as Jacob Sullum of Reason explained more than a year ago (while the Obama administration was still fully in control), that doesn’t really change anything.
One reason the Rohrabacher-Farr amendment did not work as advertised is that the Justice Department refuses to interpret it the way Rohrabacher and Farr do. It is clear from the debate that preceded the House vote on the amendment in May 2014 that supporters and opponents of the rider both thought it would bar prosecution of people who grow, possess, or distribute medical marijuana in compliance with state law. But as I predicted last year, the Justice Department argues that prosecuting medical marijuana suppliers or seizing their property does not “prevent” states from “implementing” their laws.
So the Justice Department has already made their case quite plainly, explaining that nothing in the amendment or any other existing law prevents them from raiding any marijuana growers or retailers if they feel like it. And that’s the key… if they feel like it. While Barack Obama had his people in charge the word came down from on high that this simply wasn’t going to be a priority. That left growers and would be entrepreneurs in places like Colorado free to cautiously set up their shops and go into business. But if new marching orders come down from Donald Trump or Jeff Sessions tomorrow saying that prosecutions will resume, there’s really nothing stopping them.
Allowing the state’s growers to suddenly switch their product classification from recreational to medicinal doesn’t change a thing. There are legal forms of narcotics produced from poppy plants out there which are controlled substances and they share a biological heritage with certain recreational products. But it’s no more legal to be a freelancer out on the street selling hydrocodone than it is to peddle heroin. The feds can still close you down and seize your stash. At best, Colorado seems to be engaged in a war of window dressing so they can “Resist!” Donald Trump before he’s even made a single move to change current federal marijuana policy. I’m not here endorsing such a policy change, but I don’t think this new legislation will really do much of anything if Sessions sends out the troops to shut them down.