Legal marijuana proponents in the two U.S. states that legalized the sale, distribution, and general use of marijuana – as well as the other 16 who already had some form of pro-marijuana law – probably didn’t realize, that the fight for a cheap high is not over.
Even as marijuana legalization supporters are celebrating their victories in the two states, 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.
One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state. The department could then obtain a court ruling that federal law trumps the state one.
A more aggressive option is for the Justice Department to file lawsuits against the states to prevent them from setting up systems to regulate and tax marijuana, as the initiatives contemplated. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be “severed” from those eliminating state prohibitions — or whether the entire initiatives must be struck down.
Another potential avenue would be to cut off federal grants to the states unless their legislatures restored antimarijuana laws, said Gregory Katsas, who led the civil division of the Justice Department during the George W. Bush administration.
Mr. Katsas said he was skeptical that a pre-emption lawsuit would succeed. He said he was also skeptical that it was necessary, since the federal government could prosecute marijuana cases in those states regardless of whether the states regulated the drug.
Still, federal resources are limited. Under the Obama administration, the Justice Department issued a policy for handling states that have legalized medical marijuana. It says federal officials should generally not use their limited resources to go after small-time users, but should for large-scale trafficking organizations. The result has been more federal raids on dispensaries than many liberals had expected.
There’s only one very cynical problem – the Drug Enforcement Agency refuses to give up its mission against pot.
A big reason for the get-tough stance, say White House insiders, is that federal agencies like the Drug Enforcement Administration are staffed with hard-liners who have built their careers on going after pot. Michele Leonhart, a holdover from the Bush administration whom Obama has appointed to head the DEA, continues to maintain that pot is as dangerous as heroin – a position unsupported by either science or experience. When pressed on the point at a congressional hearing, Leonhart refused to concede any distinction between the two substances, lamely insisting that “all illegal drugs are bad.”
Politically, marijuana is a boon for Democrats.
If last month’s results are any indication, younger voters could play a key role in deciding future elections in states with marijuana ballot initiatives. Exit polls suggest voters ages 18 to 29 accounted for a noticeably greater share of voters than four years ago in Colorado, Oregon and Washington – all of which voted on marijuana measures. By contrast, this age group made up roughly the same percentage of the electorate nationally this year as it did in 2008.
Once a fringe issue, marijuana is now legal in 18 states in some form and polls indicate a steady climb in support, making it difficult for politicians to ignore. Accordingly, Democratic candidates – whose voters polls show overwhelming favor legalization – may soon begin to use future ballot initiatives to their advantage.
There’s also the practical hurdles created by this conflict between federal and state law for pot dealers, such as opening a business account with a local bank, offering merchant services, like credit cards, paying taxes, and even operating an ATM machines on the premises. I’m sure making a buck will trump some hard ass at DEA, but the point is, who’s going to spend the time and money to make it happen.
This is all very frustrating for Americans who like to think that voting is the terminus of politics. It’s also disconcerting for liberals like me who, with all deference to Louis Brandeis, think the “laboratories of democracy” fudge is an affront to national integration and federal supremacy as explicitly argued in the constitutional preamble, but who also value “one man, one vote”. So, the Federal courts and states, or perhaps private individuals and organizations, will take up the next step in the seemingly unending drama that is American politics.