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US DOJ Won’t Challenge States on Marijuana Legalization ‘At This Time’

Press release from the U.S. Department of Justice; August 29, 2013:

Today, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute. To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize. These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area.

Outside of these enforcement priorities, however, the federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws. This guidance continues that policy.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance. These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time. But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

A copy of the memorandum, sent to all United States Attorneys by Deputy Attorney General James M. Cole, is available below.

Senate Urges AG Cooper to Join ObamaCare Legal Fray

The Senate voted 21-8-1 for a resolution Monday night asking state Attorney General Robert Cooper to join other states in contesting the federal health care bill on the grounds it is unconstitutional.

The vote follows the lead of Lt. Gov. Ron Ramsey, R-Blountville, who is fighting hard against an element of the bill that mandates participation in the federal plan, which Ramsey says is an unconstitutional requirement. The resolution, SRJ897, now moves to the House, where it is expected to be taken up this week and would be on the House floor next week.

Also on Monday night, on the other side of the Capitol, the House of Representatives passed a resolution denouncing the federal health care law after debating for almost two hours.

Dozens of lawmakers rose to speak out for and against the resolution. Those who opposed the resolution said they were primarily concerned for their constituents with preexisting medical conditions who can’t find private insurance. Supporters of the measure railed against officials and lawmakers in Washington, D.C. for overstepping their constitutional authority and meddling in affairs properly left to the states to address.

That resolution passed 66-29.

The national discussion on the federal bill shows what would appear, on the surface, to represent a concerted effort between the states to organize a legal resistance, but Ramsey said he has not tried to contact leaders in other states about the matter. Ramsey also said Monday night he had not spoken to Cooper since about a week ago on the issue.

He did, however, say his office has received some contact from Nevada, the home state of Senate Majority Leader Harry Reid in the U.S. Senate, and received calls from “a couple of others,” but Ramsey said those calls had been to his staff and he had personally not spoken with the callers.

“This resolution urges our attorney general to join what’s now 19 attorneys general in the United States and challenge the constitutionality of the health care plan,” Ramsey said. “It’s unprecedented that the federal government is requiring a private citizen to enter into a transaction with a private company and buy health insurance. That’s never been done. There’s no precedent. I do believe that’s unconstitutional. I hope Attorney General Cooper decides to join in with other states.”

Ramsey makes no bones about the fact that the new law, constitutional or not, carries with it a large unfunded mandate on the state. Ramsey is a candidate for governor in the Republican primary, and he says his position on the federal statute is not about his gubernatorial candidacy. But he openly admits he does not want to face the financial burden he says the law would bring on the next governor.

Speaking with reporters outside the Senate chamber following the vote Monday, Ramsey was asked if he believed Cooper would fight the federal bill if the attorney general went with the will of the people, but Ramsey quickly said it should not happen on that basis.

“I hope he doesn’t come down with the will of the people. I hope he does it because it’s the right thing to do,” he said. “So I don’t know. I do believe the will of the people out there is to challenge the constitutionality of this. People are upset. We have an overreaching federal government that’s trying to take over one-sixth of our economy.

“I know I’m upset, because I do want to be the next governor of the state of Tennessee. We’re going to have about a $250-million unfunded mandate. I learned something a long time ago. If the federal government gives you an estimate, add at least 50 percent to that. I think it’s a budget breaker here in Tennessee.”

Ramsey pointed to bipartisanship shown in the 3-to-1 margin in the Senate vote, and he is hopeful the attorney general will join the fight.

“I think the same thing will happen in the state House,” he said. “I know he has said he may not join in, but I think with an overwhelming vote like that, hopefully, he will.”

Ramsey has repeatedly made the distinction between his effort to have the law found unconstitutional and Cooper’s opinion recently that he could not support the Tennessee Health Freedom Act, a bill in the General Assembly, because that bill would bump up against the overriding authority of the federal government.

Ramsey says the earlier opinion from the attorney general was that he could not challenge the law based on those grounds but that Cooper has never said specifically whether the federal law is constitutional or not. That’s what Ramsey seeks to clarify.

Ramsey has said it is possible he would seek special counsel on the issue but that he his hopeful Cooper will join in the constitutional challenge.