By Thea Cohen

On November 2nd, Californians will vote on Proposition 19, an initiative that if passed would legalize the possession and recreational use of marijuana in most cases.  The proposed regime would permit local governments within the state to impose taxes on and regulate the sale of the drug.  For the full text of Proposition 19, click here.

Of course, the Federal Controlled Substances Act would still proscribe the sale and possession of marijuana regardless of the drug’s status under California law.  See generally, Gonzalez v. Raich, 545 U.S. 1 (2005).  President Obama had stated that the Justice Department would not prosecute users of medical marijuana if the users were in compliance with state law, but Attorney General Eric Holder recently announced that he wouldcontinue to prosecute federal drug violations in California if Proposition 19 passes.

That scenario implicates several issues of federalism.  The Supreme Court has held that the federal government cannot compel state or local governments to enforce federal law, but left an open question as to whether the federal government could demand information from state law enforcement.  See Printz v. United States, 521 U.S. 898, 918 (1997).  California’s local governments will likely set up a system of registration and keep records of all people selling marijuana.  Could the federal government then demand those records, and use them as a basis for investigations and prosecutions? 

Local governments that license and tax the sale and use of marijuana may even be criminally liable for profiting from illegal drug use and transactions.  A federal prosecutor might make an analogy to a high-level figure in an organized criminal enterprise.  The crime boss allows others to sell illegal drugs in a given territory, but demands a percentage of all the proceeds in exchange for “protection.”  A local tax on marijuana could be held to be much the same thing.