Amendment 64: Feds will threaten lawsuit or arrests to stop implementation, predicts DU prof

Colorado's voters may have approved Amendment 64, but the federal government is unlikely to allow implementation of the marijuana measure and will probably threaten to sue or begin making arrests to stop it. That's the prediction of Sam Kamin, a University of Denver professor and national expert on the Colorado marijuana scene. He details possible scenarios below.

Earlier this year, we interviewed Kamin, a criminal law professor at DU, as well as the director of the university's Constitutional Rights & Remedies Program, for a post headlined "Marijuana at the Crossroads: Event asks if MMJ lawyers are breaking oath." More recently, we highlighted his participation in a 60 Minutes report about medical marijuana in Colorado; see the piece in its entirety below.

At the top of our conversation, I asked Kamin to interpret analysis of potential federal responses to Amendment 64 by Brian Vicente, an attorney who's among the measure's most prominent proponents. Turns out Vicente is a former law student of Kamin's -- but that doesn't stop the prof from offering a balanced appraisal of his views.

Vicente told us he feels there's nothing the Justice Department can do to stop the portion of Amendment 64 that decriminalizes adult possession of an ounce or less of marijuana, and Kamin agrees.

"I think Brian's analysis of that is spot-on," he says. "I believe the federal government can do nothing [if Colorado] criminalizes or decriminalizes any particular conduct. If voters want to pass something, they can pass it, and the federal government can't come in and make them undo it."

As such, Vicente believes the A64 provisions most vulnerable to federal action would be those pertaining to the authorization of a retail system for the sale of marijuana for recreational, as opposed to medical, purposes. Kamin concurs about this observation as well, and outlines a possible strategy for a court challenge.

"If the feds seek an injunction against the regulation of retail shops, the lawsuit might look a lot like the United States v. Arizona, the suit they brought to stop Arizona from implementing its immigration bill," he says. In that case, "they essentially said, 'The operation of your immigration system will adversely affect national policy, and where there's a conflict between state and federal law, the federal law prevails.'"

We've included the order on the Arizona suit below.

Why wouldn't the same logic apply to decriminalization? "In regard to criminalizing particular conduct, Colorado is free to follow the CSA [Controlled Substances Act] prohibitions or not. The supremacy clause and the preemption clause prevents us from engaging in conduct that creates an impermissible obstacle to the enforcement of federal law -- so they might not like that we don't have parallel laws prohibiting marijuana. But it doesn't prevent them from coming in and enforcing federal law.

"If we were to encourage the selling of marijuana" by blessing a retail system, though, "they might say that is impermissible," he goes on. "Where they're trying to stop it, we're trying to encourage it, and that conflict can't stand."

At this point, Vicente and Kamin part company.

Continue to read more of our interview with DU professor Sam Kamin about Amendment 64.
KEEP WESTWORD FREE... Since we started Westword, it has been defined as the free, independent voice of Denver, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts

Latest Stories