Will the Feds Come After Legal Pot in Washington and Colorado?

Since it became clear last month that recreational marijuana initiatives would pass in Colorado and Washington, the big question has been: Will the Feds come after these states?

Under federal law, recreational marijuana use is still illegal. But now that the American people (in two states, at least) have made it clear they support legal recreational marijuana use, the Feds have to make a choice about whether to lay down the law – the federal law, that is -- or respect voters' choices.

The New York Times had a story yesterday about this issue. It noted that “the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.”

Marijuana use in both states continues to be illegal under the federal Controlled Substances Act. One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law. Should the Justice Department prevail, it would raise the possibility of striking down the entire initiatives on the theory that voters would not have approved legalizing the drug without tight regulations and licensing similar to controls on hard alcohol.

Some law enforcement officials, alarmed at the prospect that marijuana users in both states could get used to flouting federal law openly, are said to be pushing for a stern response. But such a response would raise political complications for President Obama because marijuana legalization is popular among liberal Democrats who just turned out to re-elect him.

Indeed, legalizing marijuana for recreational use is popular among Democrats, but also among the majority of citizens as a whole in at least two states. It was controversial enough when the Feds were raiding medical weed facilities in California; just imagine the outcry if they try to go after full marijuana legalization that the citizens of Colorado and Washington voted for.

Meanwhile, legal marijuana advocates are waiting for the ruling to be handed down in the Americans for Safe Access v. DEA case, which went to the Federal Appeals Court back in October. According to Americans for Safe Access, the case “is an appeal of the DEA’s rejection of a petition filed in 2002 seeking to change the placement of marijuana as a Schedule I drug per the Controlled Substances Act. Based on the scientific evidence, ASA and our fellow plaintiffs feel that it is simply untrue that cannabis is a drug with a ‘high potential for abuse’ and ‘without accepted medical use in treatment in the United States.’” The case represents the first time in two decades that the science of medical marijuana has been considered by federal courts, and the ruling could have huge implications: The loser is expected to appeal to the Supreme Court, which could lead to huge changes in federal marijuana laws.

So will the Feds accept that the tide is turning? It looks like we’re about to find out.


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