Amendment 64: Feds will threaten lawsuit or arrests to stop implementation, predicts DU prof
"I don't necessarily think they're going to sue or swoop in with SWAT teams," Kamin maintains. "They might say, 'Look, we'll pretend you didn't pass Amendment 64. We'll let you keep your medical, because we believe there are people sincerely buying and selling marijuana as medical. But if we see you authorizing retail stores [for recreational use], we're going to come in and shut everything down."
Kamin points out that this approach is similar to the one U.S. Attorney General Eric Holder took in 2010 when California pushed Proposition 19, a marijuana proposal that failed at the polls. "Holder said, 'If you pass legalization, we'll consider that war -- and California didn't. Now, that was an easier call to make in California, which is a safe state for Democrats, and Obama's name wasn't on the ballot that election. It was harder to do that in a swing state in an election year" -- the scenario in Colorado. "So we didn't see Justice saber-rattle, and we passed what California didn't."
Another possibility floated by Vicente that would allow Amendment 64 to move forward unencumbered: Now that President Barack Obama is guaranteed a second term, and no longer needs to worry about running for reelection, he might tell Holder to back off or even encourage the rescheduling of marijuana -- currently a Schedule I narcotic that is considered to have no medical use. Kamin, though, is extremely dubious about such a development.
As he puts it, "Every liberal I know has this fantasy: Come January 21 [when Obama begins term two], we're going to see the real, pot-smoking, community-activist president we felt we were getting four years ago. But I think he's an inherently conservative guy -- an incremental changer. I'm pretty skeptical about that."
Still, he does offer at least one ray of light for Amendment 64 supporters.
"The other parallel I've been talking about is between legalization and decriminalization of marijuana and marriage equality. Both have been on the ballot, both have been growing year by year, state by state. It's been a real generational change, because young people prefer these policies to their seniors. In both, we feel like we're at or near a tipping point, and President Obama came out and surprised a lot of people by endorsing marriage equality. So there is some hope for people in favor of legalization or decriminalization of marijuana that he has one more like that in him. I still don't see him using his capital going into the fiscal-cliff negotiations on this. But it might mean more of a willingness to let the state experiment."
Even so, some problems are built into Amendment 64's timetable no matter what the federal government does. For one thing, possessing an ounce of marijuana will be decriminalized as soon as Governor John Hickenlooper signs the measure, as he's expected to do within thirty days despite his previous opposition to it. (Hickenlooper is reportedly scheduled to speak to Attorney General Holder in a conference call this afternoon on the subject of A64.) Nonetheless, selling marijuana for recreational purposes remains illegal, and that won't change until regulation that's not expected to be finalized until late 2013 or early 2014.
The resulting "one-year cooling-off period" is "like an awkward adolescence," Kamin says. "It's not the end-state but sort of a stopgap while we figure out what the feds are going to do about the retail shops. It does create this black or gray market where people can grow it themselves -- but we don't think most of it is going to come from that. So I think that's a fair criticism. But the alternative was a gold rush to open shops on January 1, 2013. That would really have been chaotic. We wouldn't have known what was going to happen and what people's legal rights were. So I fully understand why [the proponents] took the middle step."
Yet this delay gives the federal government an opportunity to act. Kamin's prediction on that score?
"I think what will happen is, we'll get a statement from Washington. My guess is they'll say, 'You're not permitted to sell recreational marijuana in Colorado and Washington. If you seek full implementation of Amendment 64, we will either sue or arrest.'
"I have no special insights," Kamin emphasizes. "I have no mole in the Justice Department. It's just my sense based on what's gone on in Washington [D.C.] in the last two years in regard to marijuana. It just feels like such an expansion -- to go from serving 100,000 people to serving four or five million -- isn't something they'll stand by and let happen."
Look below to see the 60 Minutes report plus two documents -- a memo by Deputy Attorney General James Cole in regard to the federal approach to medical marijuana dispensaries and the order in the United States v. Arizona.