Former DEA chiefs urge attorney general to just say no

Nine former Drug Enforcement Administration chief has asked Attorney General Eric Holder to publicly oppose a controversial ballot initiative in California that would legalize the production, possession and sale of marijuana in that state.

In an Aug. 24 letter to Holder, the former Republican and Democratic DEA administrators, dating back to the Nixon era, expressed their "grave concern" over Proposition 19, the 2010 Regulate, Control and Tax Cannabis Act. The initiative, which Californians will consider on Nov. 2, also would allow the debt-ridden state to collect taxes on the production and sale of marijuana. The former DEA chiefs urged the Justice Department to assert the Supremacy Clause in the U.S. Constitution, as it did in its recent lawsuit against Arizona's new immigration law. That clause, found in Article VI, affirms that federal law trumps state law when the two are in conflict.

"While the California ballot initiative has not yet been approved by voters … it would be in the public interest to be aware of the law and where the Department of Justice would stand if this proposition passed," the letter stated. The authors argued the Supremacy Clause would void Proposition 19 if voters approved the measure, because Prop 19 violates the 1970 Controlled Substances Act, a federal law that renders manufacture, distribution and improper use of marijuana illegal.

Justice did not indicate where it stands on the ballot initiative. "It is premature to speculate what steps we would take in the event that California passes its ballot measure," said Tracy Schmaler, deputy director of public affairs at Justice, in an email. "The federal government is committed to enforcement of the Controlled Substances Act, and the Department of Justice will continue to focus its enforcement resources on significant traffickers of illegal drugs, including marijuana, in all states."

But a former Reagan administration official said the issue of federal and state jurisdiction in this matter is not cut and dried. "Nothing in the Constitution requires a state to prohibit as a matter of state law and prosecution what the federal government has chosen to prohibit as a matter of federal law and prosecution," Bruce Fein, former associate deputy attorney general and general counsel at the Federal Communications Commission, told The New York Times on Sept. 13. Fein is now an advisory board member to Just Say Now, an allegiance of organizations seeking to legalize marijuana and improve America's drug laws.

Proposition 19 would monitor marijuana in California similar to the way alcohol is regulated. Adults 21 and over would be allowed to possess up to 1 ounce of marijuana and to consume the product in their home or licensed establishments. State and local government would be allowed to collect taxes --an attractive approach to combating California's more than $19 billion deficit, supporters say.

But in a press release accompanying the Aug. 24 letter, former DEA administrator Robert Bonner declared Proposition 19 "a cruel hoax on the voters of California," and said it would not generate the revenue voters might hope for. Bonner noted: "In reality, it is highly unlikely that any taxes will be paid, for to do so would admit a criminal violation of federal law and expose the seller to federal prosecution. The proponents of Prop 19 either know that no taxes are going to be raised by the State of California, or they are smoking something."