State marijuana monopolies: I take it back

Oops.  The detailed analysis of the economics of a federal marijuana tax by the Congressional Research Service (Gravelle and Lowry) cites an article of mine for the proposition that “state monopolies for marijuana production or distribution cannot occur while it is still illegal at the federal level because state governments cannot force the employees of such hypothetical operations to engage in the marketing of a drug that is illegal at the federal level. See Pat Oglesby, ‘States May Be Stuck with Second-Best Marijuana Taxes,’ State Tax Notes, June 2, 2014, pp. 539-544.”

I wrote that, but I now see a possible path to state marijuana monopoly. The doctrine of judicial standing means that if you violate federal law, I probably can’t sue you (and I can’t sue the federal government either). So if you are not paying your taxes, or if you are falsely claiming disability benefits, I can’t take you to court. I can turn you in, or tell the press. It’s up to the federal government to enforce the law.

Substitute “a state” for “you” in that thinking and you kind of get the doctrine of standing. A state that violates a federal law is not subject to Citizen’s Arrest. If the federal government lets the violation go, the courts probably will, too.

A difficult path.  More to come.



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