To thwart federal pot laws, cannabis sellers find an ally in fights over gun rights, Obamacare

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It’s been a nervous business from the get-go, Jerina Pillert said. The decision to sell marijuana for a living means existing between what’s locally sanctioned and nationally forbidden, between persistent customer demand and a skittish finance industry. It isn’t for the faint of heart, she said.

New policy could mean ‘more marijuana prosecutions’

Pillert, co-owner of #Hashtag cannabis stores in Seattle and Redmond, said the chaos, the choppy seas are a daily reality. It's not simply the worry of Drug Enforcement Agency agents kicking down the door, it's also the frightened bankers who covet compound interest but fear the feds.

“There’s pressure,” she said. “We expect it.”

That pressure ramped up recently when Attorney General Jeff Sessions withdrew federal guidelines that limited enforcement on and prosecutions of businesses which sold legal pot under state law.

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But law experts on the tension between opposing state and federal laws and the looming fight over legal pot, say the cannabis industry can find comfort in successful legal battles to thwart gun control, the Affordable Care Act — and even laws from the 1800s about slave catching.

"Although the federal law supersedes in some areas, in many areas including what's called the police power, the federal government and the state government should be viewed as being equal," said Hugh Spitzer, a law professor at the University of Washington. "And (where) states have sovereignty; they can't be superseded."

Spitzer, an expert in the tension between state and federal law, said the U.S. Supreme Court consistently has ruled that the federal government is limited in what federal laws it can impose on states.

For example, when Congress passed a law banning possession handguns near schools, the nation’s high court held that such limits were solely in a state’s authority – not Washington D.C.’s. Specifically, the court ruled that the federal government was allowed to limit interstate sale and movement of handguns but not possession standards within a state.

The Supreme Court also has held that the federal government is limited in its ability to get states to enforce legal federal authority, a process called commandeering. “The federal government can’t make states collect data for it,” Spitzer said. “The most recent example of that is the so-called Obamacare.”

In this legal fight, the federal government required states to participate in the Affordable Care Act’s expansion of Medicare. “And the U.S. Supreme Court simply said you can’t do that; they don’t have to participate.”

Which brings the discussion back to pot. People who assume federal law trumps state law in all cases are wrong, legal experts say. In Washington, state law simply says the state considers the sale of marijuana legal if done within state guidelines. People who comply won't be charged with a state crime.

This means federal agencies can spend their money to investigate and prosecute but they can’t compel the Seattle or Spokane police, for example, to help out. Given that established law in other cases says the states can’t be forced, makes it impractical from both staffing and expense for the Department of Justice to impose its marijuana standard.

“The feds can spend their money hiring deputies and drug enforcement people to run around shutting down our state-licensed marijuana stores,” Spitzer said. “They could try doing that if they want.

“But they have got to spend their money to do it.”

In the 1800s, the federal government tried to force states to return escaped slaves when they were captured. Northern states, which were anti-slavery, balked. Initially, those states lost in court but after the Civil War, the statute was removed.

But one federal caveat remains — The National Guard. The federal government does hold the legal authority to assemble and direct the National Guard within any state. Could U.S. Government direct the guard to enforce federal pot laws?

“Technically they could do that,” he said. “Whether they could pull that off politically is another question.”