Residents of two western U.S. states made history in the November 6 national election by voting to legalize marijuana for recreational use. But in doing so, they also set up their states up for a potential legal clash with the federal government.
The votes, which have been hailed by pro-legalization forces and condemned by antidrug groups, did what the U.S. federal government has long refused to do: legalize the popular drug.
Experts say Washington now has a major headache to deal with.
Beau Kilmer, the co-director of the RAND Corporation's Drug Policy Research Center, says the "groundbreaking" new laws go even farther than provisions in the Netherlands, a country often considered the most friendly toward marijuana use.
"No modern jurisdiction has ever removed the prohibitions on production, distribution, and possession of marijuana for nonmedical purposes. A lot of people think that [recreational] marijuana was legalized in the Netherlands, but that's not the case," Kilmer explains.
"They have an official policy of not enforcing the law against small transactions. However, it's illegal to produce and actually sell to coffee shops. What passed in Colorado and Washington is much different in that it would allow commercial production."
Washington state's Initiative 502 sets up a system of state-licensed growers, processors, and retailers. A 25 percent tax would be collected at each stage in the process. State experts predict that could generate as much as $2 billion over five years -- money that would be funneled into education, health care, and drug-abuse prevention.
Adults are allowed to possess limited quantities of marijuana in several forms and a blood-test limit for driving under the influence has also been established.
The plan was backed by a range of supporters and sponsors, including public health experts and two former top Justice Department officials in the state. They argued that besides generating tax revenue, legalizing the drug would reduce black-market criminal activities and reduce high incarceration rates.
Colorado's Amendment 64 allows the state to regulate and tax marijuana under rules similar to those for alcohol and tobacco. Possession of up to an ounce (about 28 grams) of the drug is allowed. While public use is banned, a person is allowed to grow up to six marijuana plants in a private area.
The proposal had sizeable support going into the vote, including from more than 300 physicians in the state.
What Will Federal Government Do?
Detractors of the measures warned their states could become destinations for "drug tourists" and cautioned that it would lead to increased use among children.
Robert Mikos, a law professor at Vanderbilt University and an expert on U.S. marijuana policy, says there's no question that federal law trumps state law. But in practical terms, it's more complicated, he says:
"The federal government can still come in and arrest individuals for engaging in these activities. However, it makes a big practical difference, because, historically speaking, the states have been the biggest players in the enforcement of marijuana bans," Mikos says.
"In fact, the states have handled about 99 percent of marijuana cases. So that means that all of sudden, the states are pulling out of the war on marijuana. If it wants to enforce its own ban, the federal government has to do that with its own resources."
And potentially a lot of resources, if the marijuana industry takes off in both states. The problem for the federal government could also be compounded in years to come if, as the RAND Corporation's Kilmer predicts, other states try to follow suit.
In advance of the Colorado and Washington votes, the Department of Justice had no comment on the matter. A letter from nine former heads of the Drug Enforcement Agency to Attorney General Eric Holder expressing concern over what they called "these dangerous initiatives" went unanswered.
Too Big To Seize
Following the November 6 vote, Justice Department spokeswoman Nanda Chitre told "The Washington Post" that the agency was reviewing the ballot initiatives and wouldn't say if the agency is planning to challenge the laws.
For clues to how it might respond, Mikos points to how the government has responded in the past to states' legalization of medical marijuana. With the addition of Massachusetts on November 6, 18 states have now defied the federal ban in the name of helping seriously ill people.
"What [the federal government] has done is not so much to try to pursue criminal cases against medical marijuana dispensaries and distributors -- criminal cases are very expensive. Instead it has tried to use civil forfeiture laws to try to seize the assets of the entities that are growing and distributing the marijuana," Mikos says.
"It's much cheaper to do that [and] it's easier to get a victory if you're the federal government, so I suspect they might respond in that way if they want to try to crack down."
But those tactics, Mikos says, have not prevented the medical marijuana industry in states like California from "thriving."
He also says the federal government would be on "weak constitutional footing" if it were to challenge the laws before the Supreme Court. A provision known as the "anticommandeering rule" prevents the federal government from forcing states to enact or help enforce federal laws.
In April, President Barack Obama – who has admitted to smoking pot as a teenager -- weighed in on the debate, saying, "I, personally, and my administration's position, is that legalization is not the answer."
"Nevertheless, I'm a big believer in looking at the evidence [and] having a debate," he added. That debate, it seems, is about to get louder.