and sales entirely, because arresting a grower or dealer creates a market nichefor another grower or dealer. It should not be impossible, once a state allows areliable competing state-licensed source of supply, to drive most of the purelyillicit market out of business, just as the legal alcohol industry has largelyeliminated moonshining. Therefore it makes sense for the federal government to work with thestates – as the CSA requires – rather than against them, even when the statesdecide to regulate and tax cannabis rather than continuing to prohibit it. Thatdoes not change the illegal status of the activity under federal law. But it doeshold out hope of preventing these two local experiments from becomingnational problems.Indeed, the federal government could easily destroy the licensed, taxed,and regulated systems Colorado and Washington are now putting into place.But that would not mean that no one in those states would produce, sell, orconsume marijuana: it would merely leave production and sale in the hands of unlicensed, untaxed, and unregulated illicit and quasi-medical producers anddistributors. Would that really be a better result than is likely to emerge if thestate-level experiments are allowed to run their course?On the other hand, simple deference to the states seems equally unwise. The CSA remains the law of the land, and other states have a right to expectthe federal government to ensure that decisions made in Washington andColorado do not lead to a national flood of cheap, high-potency cannabis. The DoJ announcement of August 29 seems to me a serious and well-considered effort to deal with a situation without any easy solutions.
Alternative Approaches: Sec. 873 Contractual Agreements and Waivers
Still, the uncertainties and ambiguities created by the conflict of laws representundeniable problems. In a recently published paper, submitted for the record, Iattempt to lay out two alternatives.One, which could have been done – or could still be done – within theconfines of the current law, would be for the federal government and thelegalizing states to enter into “contractual agreements” as provided for inSection 873 of the CSA. That section gives the Attorney General the power tomake such agreements “notwithstanding any other provision of law.” In thenegotiations leading up to such agreements, the Justice Department could andshould require specific, verifiable commitments from Colorado and Washingtonwith respect both to the controls to be placed on the state-legal markets andthe efforts to be undertaken with respect to the frankly illicit markets. In myview, the risks of interstate smuggling from purely illegal activity, and from theunregulated and unregistered production for personal use allowed under the