By Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, Sturm College of Law, University of Denver
With the passage of marijuana legalization initiatives in Washington and Colorado, the long-simmering cold war between state and federal marijuana policy threatens to break out into open hostilities. While eighteen states plus the District of Columbia now permit marijuana for medical purposes, only Washington and Colorado have taken the bolder step of both repealing entirely their marijuana prohibitions for small amounts of the drug and requiring their state legislatures to begin regulating a retail, recreational marijuana industry by the end of 2013.
Everything now depends on the response of the federal government. Notwithstanding changing policy in the states, marijuana remains on the DEA’s list of Schedule I narcotics, those drugs whose manufacture and sale are strictly prohibited. Thus, every transaction in every medical marijuana state throughout the country constitutes a federal crime. The Justice Department has grudgingly accepted the medical marijuana industry thus far; while there have been some federal raids on these businesses, they have generally been permitted to operate, notwithstanding their open flouting of the Controlled Substances Act (CSA).
In 2010, when the state of California considered Proposition 19 which would have legalized marijuana for recreational purposes U.S. Attorney General Eric Holder issued voters in that state a strong warning. He made clear that the federal government would “vigorously enforce” the provisions of the CSA in the state if voters passed the Proposition. After having an early lead in polls, the measure eventually lost.
The Justice Department offered no similar threat when voters in three states considered recreational use in this election cycle (the Oregon version of the measure failed). A cynical explanation for this silence is that what was possible in a safe state for the president in an off-year election (California in 2010) was simply not possible when the president’s name was on the ballot this year – the president could not afford to alienate young voters in a swing state like Colorado by saber-rattling on an issue that energizes so many of them.
So what does the Federal Government do now? As I see it there are several possibilities:
The government could make good now on Holder’s 2010 threats and begin enforcing the CSA vigorously in Colorado and Washington.
The government could sue these two states to enjoin the implementation of retail licensing of recreational marijuana purveyors. (I believe there is nothing the federal government can do to prevent the states from repealing their own marijuana prohibitions, however). Such a suit would mirror the federal government’s suit against Arizona to enjoin the enforcement of SB 1070, arguing that the provision for retail sales in these states is an impermissible obstacle to the enforcement of the CSA.
The government could do nothing, keeping the CSA in place, but choosing not to enforce it in those states that have repealed their marijuana prohibitions.
The government could make such a policy explicit, allowing states to essentially opt out of CSA enforcement by passing laws that conflict with the federal prohibition; Colorado Congresswoman Diana DeGette is preparing wording to this effect for insertion into the CSA’s current preemption provision.
The government could move to reclassify marijuana as a less serious substance – permitting its medical use under some conditions – or could remove it entirely from the list of controlled substances.
I imagine the federal government will seek a middle ground, hoping to stave off marijuana decriminalization as long as possible. But the handwriting is likely on the wall. As with the movement toward marriage equality – another generational divide – we seem to be approaching a tipping point with regard to marijuana policy in the United States.