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Jon Talton

Analysis and commentary on economic news, trends and issues, with an emphasis on Seattle and the Northwest.

December 17, 2013 at 10:11 AM

State pot business might be nipped in the bud

I hope you enjoyed the high times of Washington’s marijuana “industry” because they may soon be over, and with it the hopes for a taxable revenue stream and a national model out of failed drug policy.

A story in Sunday’s Tacoma News Tribune laid out a fight between supporters of legalized pot and the Pierce County Council. The former wants the ability to legally smoke and sell marijuana county wide. The Council has passed an ordinance banning legalized marijuana in unincorporated areas of the county, whether selling it or smoking it.

Here’s the real news: Pot backers want to sue claiming that the ordinance is in violation of Washington’s I-520, which legalized recreational use of marijuana. But Pierce County Prosecuting Attorney Mark Lindquist “said the county will rely on federal law if it is sued.”

I’m not a lawyer (and I don’t play one on television), but I am aware of the concept in constitutional law called “preemption.” Federal law supersedes any contradictory state or local law or regulation. Federal law still bans marijuana and there’s little prospect that will change.

Thus, if and when legal marijuana supporters sue to enforce I-520, any opposing lawyer will argue preemption, the case will go all the way to the most conservative Supreme Court in a century, and Washington (and Colorado) will lose. Things get worse if medical marijuana legalization is bundled into the case.

I have been skeptical that the legal business could supplant a long-established underground network of growing, distribution and sales as much as some supporters claimed, much less be a tax windfall for the state. But looking for a fight that will end in preemption will be a setback all around, not least for the vast cost in treasure and human lives from a disastrous war on drugs.

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