“Ed feels it is important to align state and federal laws whenever possible and he has been working on this for weeks,” said Perlmutter Spokesperson Leslie Oliver. “When state and federal laws conflict on marijuana, Ed thinks states should get a waiver....“There are a lot of people in Congress who think that states should be able to decide such things for themselves,”

21 U.S.C. 903 provides:

"No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."

Gov. Hickenlooper and AG Suthers need to take a cue from Degette, Perlmutter and Polis. Instead of asking what DOJ intends to do, and sitting back while it makes up its mind, they should be telling DOJ they expect cooperation, and that any attempts at obstruction will be vigorously opposed. They should tell DOJ it can provide input on the drafting of regulations or get left behind. What they told DOJ on Friday does not send the right message:

"They emphasized the need for the federal government to articulate what its position will be related to Amendment 64," Hickenlooper's spokesman, Eric Brown, said in a statement. "Everyone shared a sense of urgency and agreed to continue talking about the issue."

The case Hickenlooper and Suthers should be making to DOJ: It is true that in listing marijuana as a Schedule I controlled substance, Congress decided that marijuana has no recognized medical use and imposed a blanket federal prohibition on the use of marijuana. However, Congress did not – and cannot – require states to enact their own criminal drug laws or make different decisions about the appropriate use of marijuana. Nor can Congress require states to enforce federal criminal laws. So it really boils down to a question of federal enforcement priorities.

Deputy Attorney General James Cole, as reported recently by '60 Minutes' expressed DOJ’s interest in medical marijuana this way:

Our focus is really on keeping it away from children. Our focus is keeping it out of the hands of organized crime. Our focus is making sure that people aren't, through marijuana dispensaries, using it as a pretext to do large-scale interstate drug dealing. These are the areas where we're really trying to focus.

The focus should be the same for recreational adult use of marijuana. In that regard, Amendment 64's regulatory scheme of strict licensing and financial reporting and monitoring should be viewed as furthering, not frustrating, DOJ's priorities and interests.

This also fits with the U.S. Attorneys Manual, Section 9-227, “Principles of Federal Prosecution.”

Federal Law Enforcement Priorities. Federal law enforcement resources and Federal judicial resources are not sufficient to permit prosecution of every alleged offense over which Federal jurisdiction exists. Accordingly, in the interest of allocating its limited resources so as to achieve an effective nationwide law enforcement program, from time to time the Department establishes national investigative and prosecutorial priorities. These priorities are designed to focus Federal law enforcement efforts on those matters within the Federal jurisdiction that are most deserving of Federal attention and are most likely to be handled effectively at the Federal level. In addition, individual United States Attorneys may establish their own priorities, within the national priorities, in order to concentrate their resources on problems of particular local or regional significance. In weighing the Federal interest in a particular prosecution, the attorney for the government should give careful consideration to the extent to which prosecution would accord with established priorities.....

Section 9-227 then lists factors to be considered in determining whether there is a substantial federal interest in prosecuting an offense. The first is the nature and seriousness of the offense. One of the considerations in this regard is the impact of the offense on the community, which in turn calls for a consideration of how the offense is viewed in the community.

Nature and Seriousness of Offense. It is important that limited Federal resources not be wasted in prosecuting inconsequential cases or cases in which the violation is only technical. Thus, in determining whether a substantial Federal interest exists that requires prosecution, the attorney for the government should consider the nature and seriousness of the offense involved. A number of factors may be relevant. One factor that is obviously of primary importance is the actual or potential impact of the offense on the community.... The impact of an offense on the community in which it is committed can be measured in several ways.... In assessing the seriousness of the offense in these terms, the prosecutor may properly weigh such questions as....what the public attitude is toward prosecution under the circumstances of the case. The public may be indifferent, or even opposed, to enforcement of the controlling statute whether on substantive grounds, or because of a history of non-enforcement, or because the offense involves essentially a minor matter of private concern.

Coloradans have spoken. They want marijuana to be legally accessible to adults, and taxed and regulated. They want adult users to be free from state criminal prosecution. There is no substantial federal interest in prosecuting adult users of small amounts of marijuana. The feds don't do it now and they have not even hinted this may change.

If adult marijuana use is allowed under state law, tolerated by the feds, and supported by the community, then it defies common sense and would be bad policy to block a state from creating a means for adults to lawfully acquire it. If possession is legal at the state level, and there is no place for individual users to legally obtain it, the black market will continue to thrive, there will be no decrease in organized criminal activity and the state will lose the expected tax revenue.

Another problem with waiting on the feds: It’s possible they will not take a public stand on Amendment 64. The Department of Justice may not be comfortable with even impliedly endorsing an activity that current federal law forbids. Nor does it want to risk a repeat of the Ogden Memo, which was misinterpreted by many as a declaration that DOJ would take a “hands-off” policy with respect to medical marijuana in states where it was legal. Too many people overlooked the stated exceptions and accused them of backtracking.

Absent a legislative change, silence by the feds is likely to have a negative practical effect on the commercial provisions of Amendment 64. Banks will continue to refuse to open bank accounts, process credit card transactions or give loans to state licensed marijuana businesses, due to the uncertainty as to whether they may be subjected to money laundering sanctions. Landlords won’t rent warehouse space to growers and processors or retail space to stores, out of concern their properties will be forfeited. How does a business deposit its revenue, make operating payroll, and pay construction costs, without using a bank? When word gets around the businesses are holding on to hordes of cash, they become robbery targets. If Amendment 64 is allowed to proceed as planned, these fears would be eliminated. The larger companies would just hire armored car trucks to make the day’s cash deposit, all forms would be filled out as required, and it would be no different than operating a Home Depot store (whose daily cash take-in is probably even greater than marijuana business.) Assurances are also needed for growers and processors.

But whether DOJ decides to challenge Amendment 64, look the other way, or join in a call for legislative change, Colorado has only 7 months, until July 1, 2013, to enact regulations. It needs to move forward with implementing the Amendment now, regardless of the position of the feds.

Our representatives in Congress are doing the right thing by quickly moving for legislative change. Since that won’t happen overnight, our Governor and state Attorney General need to step up their parallel efforts. Instead of asking DOJ for its intentions, they should be strenuously advocating that cooperation is in everyone’s best interest.