{"id":142,"date":"2017-08-09T19:38:42","date_gmt":"2017-08-10T00:38:42","guid":{"rendered":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/?p=142"},"modified":"2017-08-16T12:58:55","modified_gmt":"2017-08-16T17:58:55","slug":"could-the-states-do-anything-to-blunt-the-impact-of-a-federal-crackdown","status":"publish","type":"post","link":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2017\/08\/could-the-states-do-anything-to-blunt-the-impact-of-a-federal-crackdown\/","title":{"rendered":"Could the States Do Anything to Blunt the Impact of a Federal Crackdown?"},"content":{"rendered":"

I just returned from the NCSL annual meeting in Boston, where I participated on a Marijuana Federalism panel with Representative Roger Goodman (WA state house) and John Hudak (Brookings). A short recap of the panel can be found here<\/a> . Consistent with recent reports<\/a>, all the panelists agreed the Trump Administration is unlikely to crack down on state-licensed marijuana suppliers anytime soon. John and I have both previously written about the Trump Administration\u2019s approach to marijuana policy, e.g., here<\/a> and here<\/a>.<\/p>\n

Nonetheless, given Jeff Sessions\u2019 stated opposition to legalizing marijuana, I think it\u2019s worthwhile to consider what (if anything)\u00a0the states could do to blunt a federal crackdown, if the Trump Administration did decide to attempt one. Let me offer two possibilities\u00a0state lawmakers might consider:<\/p>\n

1. Create an indemnification fund to help pay the legal expenses of any state-licensed marijuana supplier who faces federal legal sanctions. This would include a supplier who faces a federal criminal prosecution, a civil forfeiture action, or even a civil RICO lawsuit brought by another private citizen.
\nWhy would states ever do this? Individual defendants sometimes\u00a0lack the ability and \/ or incentive to optimally (from the state\u2019s perspective) defend themselves against federal claims. For one thing, defendants don’t always have the\u00a0money needed to pursue every viable\u00a0defense vigorously, especially if their\u00a0assets have been frozen by the government. In addition, individual defendants capture only a small part of the benefit (to the state) of successfully asserting certain types of defenses. After all, those defenses — once established — can be\u00a0invoked by other, similarly situated defendants.
\nTo illustrate the problem, suppose a Massachusetts-licensed medical marijuana supplier is being prosecuted by the DOJ for distributing marijuana. Her attorneys tell her she could spend $25,000 trying to convince a federal court that her prosecution is barred by the Rohrabacher-Farr amendment (discussed on pages 353-358 of the book), but there\u2019s no guarantee she\u2019ll win \u2013 say, because the First Circuit might not follow United States v. McIntosh<\/em> and the Ninth Circuit\u2019s interpretation of Rohrabacher-Farr. In this case, the supplier might not pursue the defense vigorously (even if she could afford to); she might instead prefer to cut her losses and cut a plea deal, say, by agreeing to shut down her shop if the DOJ drops all of its charges against her. But that may not be the best outcome for the state \u2013 it might prefer that the defendant spend $25,000 for even the chance that all state law-abiding medical marijuana suppliers would be declared\u00a0immune from federal prosecution. Thus, to ensure that defendants vigorously pursue legal defenses that benefit others in the state, the state might help cover individual defendants\u2019 legal expenses (say, using a portion of marijuana tax revenues).
\nI develop this first proposal in more detail in a symposium article for the Montana Law Review here<\/a>. It\u2019s loosely modeled on personal liberty laws adopted by northern states in response to the federal Fugitive Slave Act.
\n2. Adopt poison pill legislation that would make it costly for Congress to preempt certain state marijuana reforms.
\nSome state laws are vulnerable to preemption challenge because they (arguably) undermine one of Congress’s goals, like deterring drug use. Citing such reasoning, for example,\u00a0a few state courts have held that state laws purporting to protect medical marijuana patients from employment discrimination are preempted by the federal CSA (the issue is discussed on pages 672-681). To defuse the threat that a court would find such measures preempted, a state could pass a second law \u2013 one that Congress clearly favors \u2013 and then tie the two laws (favored and disfavored) together \u2013 i.e., make them inseverable.
\nTo illustrate, suppose Massachusetts was interested in preserving its recently recognized employment protections (discussed here<\/a>) from a preemption challenge. To do so, the state could pass a law limiting the quantity of marijuana that non-residents are allowed to buy at state licensed shops, similar to the way Colorado once limited non-residents to buying one-quarter ounce of marijuana at its shops (discussed at pages 283-287). It could then make the new quantity restriction inseverable from the employment protections. While Congress (in theory) might not want states to protect marijuana users from employment sanctions, it might tolerate those protections if the states limit\u00a0non-resident access to marijuana.
\nI develop this second proposal in more detail in a new article for the George Washington Law Review here<\/a>. It\u2019s very loosely modeled on the poison pill tactic in corporate law.
\nPart of the appeal of these two options is that their success does not depend on the DOJ\u2019s willingness to heed past enforcement guidelines or Congress\u2019s willingness to restrict the agency\u2019s spending.<\/p>\n","protected":false},"excerpt":{"rendered":"

I just returned from the NCSL annual meeting in Boston, where I participated on a Marijuana Federalism panel with Representative Roger Goodman (WA state house) and John Hudak (Brookings). A short recap of the panel can be found here . Consistent with recent reports, all the panelists agreed the Trump Administration is unlikely to crack…<\/p>\n","protected":false},"author":6789,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4],"tags":[6,58,5,57,59,56,55],"class_list":["post-142","post","type-post","status-publish","format-standard","hentry","category-news","category-updates","tag-cannabis","tag-indemnification","tag-marijuana","tag-poison-pill","tag-preemption","tag-sessions","tag-trump"],"_links":{"self":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/142","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/users\/6789"}],"replies":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/comments?post=142"}],"version-history":[{"count":4,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/142\/revisions"}],"predecessor-version":[{"id":146,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/142\/revisions\/146"}],"wp:attachment":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/media?parent=142"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/categories?post=142"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/tags?post=142"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}