Last Tuesday was a banner day for those seeking to ease
restrictions on marijuana use.
Massachusetts joined 17 other states that allow the medical use
of marijuana. Voters in Washington and Colorado passed initiatives
that would make their states the first in the country to allow
recreational use of the drug.
One problem: The new initiatives put state law in direct conflict
with federal law, under which marijuana is still classified as a
Schedule I narcotic.
Officials in Colorado and Washington have said they'll comply
with voters' wishes though they've been up front about the fact
that the federal government could make things complicated.
"The voters have spoken, and we have to respect their will," said
Colorado Gov. John Hickenlooper the day after the election. "That
said, federal law still says marijuana is an illegal drug, so don't
break out the Cheetos or Goldfish too quickly."
The Department of Justice, meanwhile, is giving no indications of
its plans. "In enacting the Controlled Substances Act, Congress
determined that marijuana is a Schedule I controlled substance,"
department spokeswoman Nanda Chitre said last week. "We are
reviewing the ballot initiative and have no additional comment at
Some observers speculate that Attorney General Eric Holder may be
on his way out, and will cede the decision of how to respond to his
In Colorado, Governor Hickenlooper has until Jan. 5 to amend the
state constitution and allow recreational users to possess up to an
ounce of marijuana and up to six marijuana plants for private use.
But the bigger test will come later. Both ballot initiatives direct
their states to set up a system that licenses, regulates, and taxes
commercial distributors of marijuana meaning that for-profit pot
shops could start springing up by 2014.
In the immediate term, that means that both states will likely
see decriminalized possession pass unchallenged.
"The feds have no interest in [going after individual users],"
says Sam Kamin, a law professor at the University of Denver. "They
dont have the resources to do that, and there's nothing they can do
from a legal point of view to make the state reverse that decision."
When it comes to street-corner businesses selling marijuana for
recreational use, on the other hand, it may be a different story,
and President Obama will have to decide how or if to confront that
more flagrant violation of federal law.
The options available to him and to Congress include the
Focus resources on enforcing federal law where the states choose
not to, launching full-scale criminal cases against marijuana
growers, dealers, and distributors.
Focus on non-criminal actions to make life difficult for the
distributors who pop up threatening to seize all their assets, or
cracking down on the landlords or banks who work with them, or
enforcing the tax code that bars drug distributors from making
deductions for business expenses.
Compromise by focusing only on certain egregious activities
distributors who look like they're shipping marijuana out of state,
for instance, or who are selling to minors.
Direct federal prosecutors to use their discretionary power and
largely ignore marijuana cases in those states that allow its use.
Threaten to withhold federal funds from local and state police
offices that don't enforce federal drug laws.
Amend federal law to specifically exempt states that allow
marijuana use from federal drug prosecution.
Pursue lawsuits against Colorado and Washington similar to the
one initiated against Arizona with SB1070, Arizona's controversial
immigration law that also ran afoul of federal policy.
Decide to reschedule or deschedule marijuana as a schedule I
Many of these options, of course, aren't very likely. Don't hold
your breath waiting for the federal government to decriminalize
marijuana anytime soon. …