Marijuana initiative can't force John Suthers to sue feds over enforcement, his office says
In our post yesterday about the progress of Legalize 2012's Cannabis Re-legalization Act, proponent Laura Kriho noted that a section had been added to the proposal directing Colorado Attorney General John Suthers to sue the federal government if it attempts to enforce its marijuana laws here. But AG spokesman Mike Saccone doubts such an edict would have binding effect on Suthers even if voters approve it.
In conversation with Westword, Kriho cited a recent Suthers op-ed in the Colorado Springs Gazette entitled "Despite State Constitution, Medical Marijuana Violates Federal Law." In her view, the piece said, in essence, "'I just can't think of any lawsuits to file against the feds at this point for medical marijuana.'"
For that reason, the act now includes what Kriho refers to as the "Suthers clause." In it, she reveals, "we say the attorney general is required to file lawsuits against the feds until the feds cease and desist their activities to enforce federal law -- and if he can't think of any grounds to file lawsuits on, he's required to hire outside counsel to tell him what lawsuits to file."
Here's the section in question:
Section 12. Attorney General -- Chief Legal Officer of the State -- Requirement to MakeRecommendations for Enforcement to Governor and General Assembly.
(1) The attorney general is the chief legal officer of the state and has the duty to enforce this article.
(2) The attorney general shall make timely recommendations to the general assembly and the governor to assist those bodies in the promulgation of statutes or rules and establish enforcement regulations to enact the goals of this article.
(3) (a) The attorney general shall establish guidelines for law enforcement officers for establishing probable cause that the provisions of this article have been intentionally violated. (b) The purpose of these guidelines shall be to eliminate as much as possible the arrest and prosecution of adults for cannabis use and to enable immunity from prosecution.
(4) The attorney general shall, upon written notification of the commission, assist the commission with recommendations to promulgate effective rules and regulations to achieve the goals of this article.
(5) If the federal government tries to enforce or threatens to enforce federal marijuana prohibition laws in the state of Colorado, the attorney general shall bring lawsuits against the federal government, until such threats or enforcement activities by the federal government completely cease and desist. If the attorney general cannot formulate appropriate legal theories under which to file these lawsuits, the attorney general shall hire outsideconsultants to advise him on potential legal strategies.
(6) The attorney general shall, at the request of the commission, assist the commission in the legal defense of any Colorado citizen arrested or charged with a federal marijuana offense.
In response, Saccone suggests that Kriho misinterpreted the theme of Suthers' Gazette op-ed.
"The column is about the difference between the suit against the individual health mandate and the issue of why the feds can still regulate medical marijuana," he says. "In the former, the idea of whether Congress can regulate economic inactivity -- the decision not to purchase a product or service -- is an unsettled question. But the Supreme Court has already weighed in on the question of marijuana."
In the case of Gonzales v. Raich, from 2005, Saccone goes on, "the court has said that even if marijuana is grown, sold and consumed within a single state, it still affects interstate commerce, and is therefore subject to federal regulation. So it's a decided question, while the other is not. And unless the court revisits that, what the Supreme Court says the law is, that's what the law is."
Page down to continue reading Saccone's take, and to see a judge's ruling on a similar case.
Regarding the order to sue the federal government should the Cannabis Re-legalization Act pass, Saccone notes that a previous measure -- 2006's Referendum K, which dealt with federal immigration policy -- contained a similar directive for the attorney general to sue. Here's the key passage:
THE GENERAL ASSEMBLY HEREBY FINDs AND DECLARES THAT THE FAILURE TO ENFORCE IMMIGRATION LAWS AT THE FEDERAL LEVEL PLACES AN UNDUE BURDEN ON STATE GOVERNMENT RESOURCES AND THAT THERE IS A LIMITATION ON WHAT CAN BE DONE AT THE STATE LEVEL TO ENFORCE THE FEDERAL LAWS AND TO IMPLEMENT LAWS AT THE STATE LEVEL. THE GENERAL ASSEMBLY FURTHER FINDSTHAT THE STATE OFCOLORADO SPENDS A DISPROPORTIONATE SHARE OF ITS LIMITED TAX REVENUE ON PUBLIC SERVICES AND BENEFITS SUCH AS HEALTH CARE, LAW ENFORCEMENT, CRIMINAL DEFENSE AND INCARCERATION, AND EDUCATION THAT ARE PROVIDED TO ILLEGAL ALIENS AS A RESULT OF THE FEDERAL GOVERNMENT'S FAILURE TO ENFORCE IMMIGRATION LAWS. THEREFORE, THE COLORADO STATE ATTORNEY GENERAL SHALL INITIATE OR JOIN OTHERSTATES IN A LAWSUIT AGAINST THE UNITED STATES ATTORNEY GENERAL TO DEMAND THE ENFORCEMENT OF ALL EXISTING FEDERAL IMMIGRATION LAWS BY THE FEDERAL GOVERNMENT.
John Suthers' Facebook profile photo.
Problem is, similar lawsuits filed by several other states had already failed by the time the referendum was approved -- meaning that a suit making the same assertions would be, by definition, frivolous.
With that in mind, Suthers came up with a different legal argument, claiming that the federal government had "neglected its responsibility under Article IV, Section 4, of the United States Constitution to protect states from invasion by securing the national borders." But Judge Lewis Babcock dismissed the suit with prejudice, as can be seen in the ruling on view below.
Saccone has not seen the Re-legalization Act's language, so he can't say definitively that its directive to Suthers would face the same fate as the one involving Referendum K. But if the past is any guide, he feels it would face very similar, and probably fatal, challenges.
Here's the aforementioned lawsuit, which targeted then-U.S. Attorney General Alberto Gonzales and former Homeland Security Secretary Michael Chertoff, as well as the United States of America.
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