Attorney General on Washington and Colorado Marijuana Legalization

UPDATE> The hearing went ahead, but Holder told Committee Chairman Patrick Leahy (D-VT) that the Justice Department has not decided its policy, but it will be coming soon. (March 6, 11:30 am)

On Wednesday, March 6, unless it is postponed by a forecast snow storm (a fairly unlikely outcome), U.S. Attorney General Eric Holder will testify before the U.S. Senate Judiciary Committee at the annual hearing on the activities of the U.S. Department of Justice. Under the committee rules, he should have sent to the committee in advance of the hearing a written statement for Senators to prepare appropriate questions for the hearing.

As of mid-afternoon Tuesday, the content of the statement has not been leaked to the press. Perhaps with common Justice Department arrogance they are holding the statement until the last minute.

I think it is very likely that his statement reveals the Department of Justice approach to the marijuana legalization laws of Washington and Colorado. It would be amazing if the Justice Department chose not to put this important matter in writing in advance of the hearing. Everyone knows that it will be a subject of senatorial questions and comment.

If I were the ranking Republican, Senator Charles Grassley (R-IA), I would certainly leak Holder's statement and my reaction to it, in order to try to shape the commentary about it. As the brother of an alcoholic, Senator Grassley is vehemently hostile to addiction and drug use, and any legislation that might liberalize drug use.

If Holder announces that the Justice Department is going to do anything that could be considered as an accommodation of the Washington and Colorado laws, Grassley could condemn the Attorney General and the Obama Administration for being soft on marijuana, etc.

If Holder announces that the Justice Department will oppose Washington and Colorado, Grassley could condemn them for waiting to so long to decide and for any incompleteness in the opposition he could find.

I think the odds are three to one that Justice will oppose Washington and Colorado and say that it is preparing a lawsuit to enjoin the state laws as violations of the Constitution's Supremacy Clause for being in "positive conflict" with the Controlled Substances Act and in violation of U.S. treaty obligations.

I think there is a 1 in 8 chance that the Justice Department will announce that it is going to formally cooperate with Washington and Colorado law enforcement agencies in carrying out their laws and to assure that marijuana from those states does not leak across their state lines to their neighbors or the other 48 states. This would be a terrific outcome in letting the states carry out their laws. It would, of course, be a signal to the other states that they could move ahead with marijuana legalization on their own terms.

Another option is that Justice does not sue to stop Washington and Colorado but simply attempts to pressure them to back off, and engages in the kind of ad hoc prosecutorial harassment of the marijuana industry such as we have seen in California.

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