Will Obama Go After Legal Pot in Washington and Colorado?


History was made on Election Day. For the first time ever, a majority of voters decided at the ballot box to abolish cannabis prohibition.

In Colorado, 55 percent of voters – 4 percent more than favored President Barack Obama – decided in favor of Amendment 64, a constitutional amendment allowing for the legal possession of up to one ounce of marijuana and/or the cultivation of up to six cannabis plants in private by persons age 21 and over. Longer term, the law seeks to establish regulations regarding the licensed production and commercial sale of marijuana to adults. 

In Washington, 56 percent of voters decided in favor of Initiative 502, removing criminal and civil penalties regarding the private adult possession of up to one ounce of cannabis for personal use (as well as the possession of up to 16 ounces of marijuana-infused product in solid form, and 72 ounces of marijuana-infused product in liquid form). As in Colorado, Washington’s law also calls for the implementation of regulations governing the commercial production and sale of cannabis to select patrons age 21 and older. 

To date, local lawmakers have expressed little, if any, resistance to these laws’ implementation. In the days immediately following the election, prosecutors in some of Colorado and Washington’s largest counties began voluntarily dismissing hundreds of pending marijuana possession cases ahead of the laws’ official enactment. They didn’t have long to wait. Outgoing Washington Gov. Christine Gregoire officially signed I-502 into law on December 6. Her signature immediately legalized, for the first time in modern history, the personal possession and use of cannabis by adults in private.

Several hundred activists celebrated the occasion by openly smoking cannabis in public at the iconic Seattle Space Needle – an act of civil disobedience that is classified under the new law as a civil violation punishable by a $100 fine, but was nonetheless ignored by local law enforcement who failed to issue a single citation. Behind the scenes, Washington state regulators are reportedly working on an expedited timetable to finalize and enact separate regulations allowing for the plant’s commercial production and sale by state-authorized proprietors, an effort that newly elected Gov. Jay Inslee supports.  

“My belief is Washington has worked its will,” the incoming governor stated at a press conference in mid-November. “The voters have spoken. I was not supportive of the initiative but I’m going to be fully supportive of protecting, defending and implementing the will of the voter – which will essentially allow the use of recreational marijuana in our state. … This is a local decision of a local state, and we’re going to do everything we can in this administration in that regard and hopefully that’ll happen.”

Colorado Gov. John Hickenlooper expressed similar sentiments on December 10 when he signed an executive order enacting Amendment 64 into law (and amending the state’s constitution) several weeks earlier than anticipated. Despite the governor’s previous public opposition to the measure, Hickenlooper announced: “Voters were loud and clear on Election Day. We will begin working immediately with the General Assembly and state agencies to implement Amendment 64.”

As in Washington, Amendment 64’s provisions providing state legal protections for adults who possess, consume or cultivate personal use amounts of cannabis in private became law upon the governor’s signature. The implementation of additional provisions regarding the commercial growing and sale of cannabis by state-licensed individuals will be addressed in the coming months by state regulators and by the members of a 24-member task force.

Yet despite the national – and in some instances, international – discourse stimulated by these unprecedented states’ votes, the Obama administration, so far, has remained uncharacteristically tight-lipped. Although some anonymous "senior White House and Justice Department" officials recently spoke to the New York Times regarding various possible actions the federal government may take to address the situations in Colorado and Washington, formal pronouncements have been few and far between. On the eve of the enactment of I-502, the US Attorneys Office for the Western District of Washington reiterated that cannabis remains prohibited under federal law, a fact that was never in dispute, but offered no insight as to whether the federal government – which continues to classify marijuana as a substance equally dangerous to heroin – intends to aggressively enforce that prohibition. More recently, following the initial implementation of Colorado’s marijuana legalization law, the US attorney general cryptically told Bloomberg News that the administration will formally announce its intentions “relatively soon,” but added no further details. 

Most recently, President Obama told ABC News’ Barbara Walters, "It would not make sense for us to see a top priority as going after recreational users in states that have determined that it's legal. … We’ve got bigger fish to fry.” His remark is reminiscent to comments the president previously made with regards to state medical marijuana laws – comments many advocates believe he turned his back on. He added, “[W]hat we're going to need to have is a conversation about, how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal?"

Some congressional lawmakers intend to do just that. A bipartisan coalition of US House Representatives, led by Rep. Diana Degette of Colorado, introduced legislation in Congress: HR 6606: the Respect States’ and Citizens’ Rights Act to exclude federal officials from interfering in Colorado and Washington’s newly enacted laws. The measure, which presently has 10 co-sponsors, states: "In the case of any state law that pertains to marihuana, no provision of this title shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of state law on the same subject matter, nor shall any provision of this title be construed as preempting any such State law." Adds Rep. Degette, HR 6606 seeks to “protect states' rights and immediately resolve any conflict with the federal government.”

More recently, Vermont Sen. Patrick Leahy publicly announced his intent to call for Senate hearings in the 113th Congress to discuss legislative options to ensure that the federal government respects the will of Colorado and Washington voters. "One option would be to amend the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law," Leahy wrote in a letter to Drug Czar Gil Kerlowske. “In order to give these options full consideration, the Committee needs to understand how the administration intends to respond to the decision of the voters in Colorado and Washington.”

It’s clear how the public would like the administration to respond. In several polls commissioned since the election, voters have indicated that they would prefer the feds do nothing at all. According to the most recent Gallup poll, a near supermajority of citizens believes that the federal government ought to respect state laws in Colorado and Washington. Sixty-four percent of respondents do not believe that the Obama administration “should take steps to enforce federal anti-marijuana laws in those states.” Only 34 percent of respondents agree that the federal government should take actions to interfere with the implementation of these laws. In addition, more than four out of 10 respondents who personally acknowledge opposing cannabis legalization nonetheless believe that the administration should respect state laws allowing for its legal possession, use and sale.

With public opinion firmly behind the will of the voters, is it realistic to think that the Obama Justice Department will take action to try and nullify Colorado and Washington’s legalization laws? It’s possible, but it may not be as likely as some think.

For starters, states are not mandated under the US Controlled Substances Act to criminalize marijuana or to arrest and prosecute adult cannabis consumers and the federal government cannot compel prosecutors in Colorado or Washington to do so. The Justice Department and the US Drug Enforcement Administration could, theoretically, choose to selectively prosecute those individuals in Colorado and Washington who possess or grow quantities of plant that are compliant with state law. But such a scenario is hardly plausible. The federal government lacks the manpower and the public support – and therefore the political will – to engage in such behavior and this reality is unlikely to change any time soon. As acknowledged by former congressman and ex-DEA director Asa Hutchinson at a recent CATO Institute forum on the subject, the federal government never has prosecuted people for possessing an ounce of marijuana and it is not about to start doing so now.

By contrast, the Obama administration may attempt to actively prohibit states from allowing for the above-ground, licensed production and sale of cannabis by authorized proprietors. Justice Department officials could theoretically do so by either bringing a legal challenge against the states, by threatening local officials, or by proposing to withhold federal funding. But none of these actions are assured. Here’s why.

To date, the Obama administration has done little to interfere with the state-approved production and licensed distribution of medical marijuana in those states that explicitly license and regulate this activity — specifically in Arizona, Colorado, Maine, New Jersey, and New Mexico. (In recent days, some of the first state-approved dispensaries opened for business in Arizona and New Jersey. In coming months, licensed dispensaries are also anticipated to open their doors to the public in Vermont as well as the District of Columbia.) In Colorado – where the state has licensed several hundreds of cannabis dispensaries and oversees "seed to sale" regulations governing the plant’s production and distribution – federal officials have yet to either file suit or threaten any of the state regulators who oversee the program. In response to a lawsuit filed in 2011 by Arizona Gov. Jan Brewer, who sought to invalidate the state’s 2010 medical cannabis law, lawyers for the federal government affirmed that the administration had never engaged in such strong-arm tactics and did not intend to. 

The federal judge in the case agreed. She rejected Gov. Brewer’s legal arguments that the operation of state-approved medical marijuana dispensaries was preempted by federal law or put state employees at risk for federal prosecution, determining “[T]he Complaint does not detail any history of prosecution of state employees for participation in state medical marijuana licensing schemes [and] fails to establish that Plaintiffs are subject to a genuine threat of imminent prosecution and consequently, the Complaint does not meet the constitutional requirements for ripeness.”

A Maricopa County (AZ) Superior Court ruling from earlier this month further affirms that states possess the legal authority to regulate the legal distribution of cannabis, at least in some specific instances, without running afoul of federal anti-drug laws. In the case before the Court, White Mountain Health Center, Inc. v. Maricopa County, Judge Michael Gordon determined that the federal Controlled Substances Act did not preempt Arizona’s efforts to authorize “the local cultivation, sale, and use, of medical marijuana.” Writing for the Court, Judge Gordon declared that nothing in Arizona’s law circumvents federal law since Justice Department officials could still continue to locally enforce the Controlled Substances Act. In fact, Judge Gordon suggested that the new law “affirmatively provides a roadmap for federal enforcement of the CSA, if they so wished to” since the statute requires patients and proprietors to register their activities with the state. He concluded: “The Court rejects … arguments that the [law] violates public policy simply because marijuana use and possession violate federal law. Eighteen states and the District of Columbia have passed legislation permitting the use of marijuana in whole or in part. The Court will not rule that Arizona, having sided with the ever-growing minority of States, and having limited it to medical use, has violated public policy.”

Some legal experts, including law professor Robert Mikos of Vanderbilt University Law School, suggest an additional legal theory as to why Colorado and Washington’s proposed regulatory schemes may not be subject to federal preemption. Speaking at a recent CATO Institute sponsored forum, Mikos suggested that the newly enacted state legalization laws do not violate the spirit or the intent of the Controlled Substances Act because the federal law exists for the expressed purpose of limiting the consumption of certain substances by the public, particularly young people. One can argue that the proposed statewide regulatory schemes in Colorado and Washington – which impose age restrictions for buyers and limit sellers to those authorized by the state – are intended to serve a similar purpose. Further, the proposed state programs, “do not stop federal authorities from sanctioning registrants.” Notably, Superior Court Judge Gordon specifically highlighted these arguments in his decision to uphold Arizona’s law and to reject claims that it positively conflicted with federal law.

“No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree [by Arizona’s medical marijuana law],” he opined. “Instead of frustrating the CSA’s purpose, it is sensible to argue that the [law] furthers the CSA’s objectives in combating drug abuse and the illegitimate trafficking of controlled substances.”

In short, it may be argued that the enactment of limited legalization in Colorado and Washington will not signal the beginning of a ramped-up federal drug war, but instead will usher in the beginning of the end of federal cannabis prohibition. Like alcohol prohibition before it, the criminalization of cannabis is a failed federal policy that delegates the burden of enforcement to the state and local police. How did America’s "noble experiment" with alcohol prohibition come to an end? When a sufficient number of states enacted legislation repealing the state’s alcohol laws, prohibition effectively discontinued. With state police and prosecutors no longer enforcing the federal government’s unpopular law, politicians eventually had no choice but to abandon the policy altogether. 

Is history repeating itself? Time will tell.

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