It's legal to smoke pot in Colorado and Washington state now — except that it's not. Colorado voters passed an initiative Tuesday allowing possession of 1 ounce and six plants growing in a private, secure space. Washington voters said people 21 and older could buy an ounce from a licensed seller. But the federal government has the last word, and its ban on possession and distribution of marijuana stands.
What happens next depends entirely on how the Obama administration's Justice Department chooses to use its power. The feds can crack down, or they can let a new haze dawn. There's plenty of historical reason to think the Obama administration will go with the hard line — and a few glimmers of hope that it won't.
So far, amnesty isn't in the offing. "The Department of Justice's enforcement of the Controlled Substances Act remains unchanged," a spokesman for the U.S. Attorney's Office in Colorado said Tuesday night. "We are reviewing the ballot initiative and have no additional comment at this time."
Colorado Gov. John Hickenlooper, who opposed the marijuana legalization measure, couched his own response carefully.
"The voters have spoken, and we have to respect their will," he said. "This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don't break out the Cheetos or Goldfish too quickly."
Right. History isn't encouraging for the pot smokers. The Colorado and Washington initiatives put the Justice Department in an awkward position, but then again, so did California's medical marijuana law, among others, and that one has gone badly for marijuana growers and sellers.
From October 2011 to October 2012, federal law enforcement shut down 600 dispensaries. It was the biggest crackdown since California legalized medical marijuana in 1996. Prosecutors also tried to seize the assets of sellers and their landlords and threatened them with criminal charges.
This is not a tale of the federal government following the lead of the states. It's a tale of the Justice Department asserting its authority against the state's voters and state sovereignty. The federal government has this authority because of the 2005 Supreme Court decision that essentially ended the march of federalism.
You may vaguely remember this one from the huge fight over Obamacare. In the 2005 case, Gonzales v. Raich, Angel Raich was a sick woman in California who said medical marijuana was the only way she could combat excruciating, life-threatening pain. She argued that in light of the state's 1996 legalization of medical marijuana, the Justice Department couldn't enforce the Controlled Substances Act against her — in other words, the feds couldn't take away her pot. Raich lost 6-3, with conservative Justice Antonin Scalia joining the liberal-centrist wing of the court. When it came to a choice between a federal crackdown on pot smokers and a state-led push to leave them alone, Scalia lost his appetite for dismissing Congress and federal prosecutors in favor of the states.
If this all sounds hopeless for Colorado and Washington's tokers, though, consider two pieces of evidence that the Obama administration may be shifting ground. The first is a report in GQ last summer claiming that President Barack Obama wants to "pivot" on the war against drugs in his second term.
"From his days as a state senator in Illinois, Obama has considered the Drug War to be a failure," Marc Ambinder wrote.
This has widely been read as a sign that the Justice Department will ease up on marijuana enforcement, even though that's not what happened in California.
Washington and Colorado's voters have become the first to answer no since the first legalize marijuana state ballot measure in 1972. Maybe their voices will give the Obama administration and Holder pause.
They should. There are plenty of questions left to answer and thresholds to cross — how would a statewide marijuana market work?
Would the government collect a sales tax? Amsterdam, anyone?
Now two states are offering themselves up as laboratories, in the classic federalist tradition of experimentation. The Justice Department should let them try. The rest of the country can be the control group for now.
Emily Bazelon writes for Slate.