A court case in Pierce County Friday will decide whether the city of Fife can ban marijuana businesses. But it could have a much larger side effect, putting Washington’s entire system for regulating legal pot in peril.
A handful of pot businesses are challenging Fife’s right to keep them out. The city is presenting two defenses. First, city officials say state law lets them opt out — a point on which they have backing from Washington’s attorney general. But if that fails, they have a second argument, which raises the stakes considerably: They say federal law trumps Initiative 502, and should strike most of it down.
A key question will be how involved the state is in the marijuana market.
“If a state decides to engage in the sale of marijuana by having state officials go out and sell it through a state program, that would be preempted. There's no question in my mind,” said Alex Kreit, a drug policy expert at the Thomas Jefferson School of Law in San Diego.
The authors of I-502 say the state is not doing that, but rather simply allowing private parties who play by the rules to buy and sell pot. The regulations are then just a way to sort out who’s following the rules and who isn’t.
But Fife City Attorney Loren Combs said with the state raking in taxes, that argument doesn’t hold up.
“Gosh, if I were making several hundreds of thousands of dollars a month off allowing people to violate federal law, it sure seems like I’m in the game,” he said.
Still, with dozens of states having loosened their marijuana laws, Kreit said the feds have had plenty of chances to challenge them.
“The biggest signal of how weak this is is that the federal government has never once come into court to argue that a state medical marijuana or marijuana legalization law is preempted,” he said.
If Fife loses or wins based just on state law, the federal preemption issue might not even come up in court. But if it does, depending on appeals, it could answer a question that has been hanging over Washington’s marijuana legalization from the very beginning.
