State representative Roger Goodman (D-45) is confident the federal government won't intervene in Washington State's legal-pot experiment. At a cannabis industry event last week, the Kirkland legislator said the Feds would have already filed suit if that were their plan. The current lack of a federal response, Goodman said, is "almost a silent message to Washington State: Rock on."
I followed up with Goodman to investigate his certainty.
"There are very few options that the federal government could pursue that would bring the whole program down," he told me. Echoing conclusions made in a new report from the federal Congressional Research Service (CRS), which is the policy analysis wing of the Library of Congress, he suggested three possible ways the Feds could mess with legal pot.
Prosecute pot businesses: According to the CRS report, "Criminal prosecutions are perhaps the DOJ's most potent tool for undercutting the Washington and Colorado laws." But Goodman noted that such prosecutions wouldn't take down the legal pot system in Washington, just a few cannabis licensees.
Seize private property: The Feds can take any property used to violate the federal Controlled Substances Act—buildings leased to retail pot shops and cannabis production facilities, vehicles used in transport, bank accounts—and they can do it with very little burden of proof. But again, Goodman noted, "That would not be a federal-state challenge, that would be strictly a violation of federal law."
Civil lawsuit: The CRS report also suggests the federal government would not succeed in a legal challenge against the state's reduced penalties or taxes on marijuana. The Feds are much more likely to succeed in preempting licensing of pot growers and retailers, behavior that seems to actively authorize federal law violations. "I don't think that is the route they're going to take," Goodman concluded, adding that it seems more likely a pot-intolerant citizen might sue to enjoin the state from licensing a cannabis store in their town.
In any case—whoever does or doesn't get sued—Goodman thinks the law will survive and adapt. "Ultimately, this is really about politics and not the law," he said. "I don't think [a lawsuit] is likely to suspend the whole program."