Some Initiative 502 supporters claim that my legal conclusion undermines marijuana legalization. In fact, while my opinion is grounded solely on an objective reading of the law, it also protects I-502, writes guest opinion columnist Bob Ferguson.
MARIJUANA legalization under Initiative 502 is a bold experiment. As attorney general, I am defending that state law rigorously. But one question threatens to unravel marijuana legalization in Washington state and, potentially, across the country: Can cities and counties ban the sale of marijuana within their local jurisdiction?
When asked to answer that important question, I reviewed the law carefully and concluded that, yes, they may. Local governments have broad authority to pass their own laws unless a state law explicitly says they can’t. Simply put, the language of I-502 does not prohibit local bans. The drafters could have included such a provision, but they did not. Many marijuana advocates were disappointed in this conclusion, but my job is to go where the law takes me, whatever the outcome.
Some I-502 supporters claim that my legal conclusion undermines marijuana legalization. In fact, while my opinion is grounded solely on an objective reading of the law, it also protects I-502.
Here’s how: Although I-502 legalized marijuana under state law, it did not change federal law. The United States still bans marijuana, and federal officials could prosecute Washington residents even if they are following I-502. Some cities and counties, in defending their bans on marijuana sales, have already argued in court that federal law completely invalidates (or “pre-empts”) I-502.
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I disagree with that view. But this issue of federal pre-emption could lead to a ruling by the U.S. Supreme Court that states may not legalize marijuana at all.
All five Washington courts to consider a local government’s ban have agreed with my opinion that I-502 does not force local governments to allow marijuana businesses, and therefore no court has needed to address this issue of federal pre-emption. Because courts have been able to resolve these cases under state law, there has been no federal precedent established. Consequently, an adverse decision on federal grounds — potentially devastating to the democratic experiment contemplated by I-502 — has thus been avoided.
Meanwhile, our state Legislature is now being asked to prohibit local bans of marijuana businesses. Every other state legalizing marijuana — Colorado, Oregon and Alaska — allows local bans. If our legislature outlaws them, Washington would be an outlier — the only state with legalized marijuana not to allow local governments to prohibit marijuana businesses.
If that happens, some local officials would still ban the sale of marijuana in their cities and counties. They would argue that federal law trumps Washington’s marijuana law, and the federal courts would be forced to consider and resolve the federal pre-emption issue.
Marijuana advocates should think hard about whether they really want to risk the U.S. Supreme Court deciding now, at the very beginning of this grass-roots experiment, on a sweeping nationwide basis whether marijuana may remain legal in Washington, or any state.
And, I-502 supporters should realize what the initiative drafters in Colorado, Oregon and Alaska grasped: While a patchwork system might not be perfect, allowing local bans of marijuana businesses actually protects the initiative against legal challenges.