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November 8, 2012

Early reactions to end of state pot prohibition in Colorado and Washington

Both the New York Times and Washington Post have lengthy new articles talking through what might happen now that voters in two western states have, via ballot initiative, legalized marijuana under state law.  Here are snippets from this New York Times piece, headlined "Voters Ease Marijuana Laws in 2 States, but Legal Questions Remain":

For supporters of legalizing marijuana, it was a historic moment, one that drew comparisons to the end of Prohibition: On Tuesday, voters in Colorado and Washington State made it legal to smoke pot recreationally, without any prescription or medical excuse....

[I]t will be a month before the measures are officially on the books, and longer still before state officials write the rules, tax codes and other regulations creating new state-licensed retail marijuana shops. But the larger, looming problem is a clash with the federal government, which still views marijuana as a Schedule I prohibited substance and has cracked down on states, like California and Montana, that have voted to allow medical marijuana.

In a statement on Wednesday, a spokesman for the Drug Enforcement Agency said the Justice Department was reviewing the ballot measures and declined to comment directly on how officials would respond to them. But he said the agency’s enforcement of federal drug laws “remains unchanged.” The United States attorneys in Denver and Seattle responded with nearly identical statements, offering no clue on whether they would sue to block the measures from being put into effect. It is a murky landscape now, one that potentially pits voters who supported President Obama and legalization against the president’s own Justice Department....

As soon as the laws are certified, it will be legal under Colorado and Washington law for adults 21 years and older to possess up to an ounce of marijuana.  In Colorado, people will be able to grow as many as six plants. In Washington, users will have to buy their marijuana from state-licensed providers....

The laws do not allow people to light up in public, and cities and counties will be able to block marijuana retailers, in much the same way that blue laws have restricted alcohol sales for decades. And it remains illegal to drive a motor vehicle while high on the drug....

It is still unclear how much will change. The streets here in Denver and across Colorado are already lined with shops, their windows decorated with green crosses and pot leaves, advertising all-natural plant treatments and herbal health aids....  To advocates, the real power of the measures’ passage may be that they signal a change in the way voters think about drugs and drug policy in the United States.  Brian Vicente, a leading campaigner for the Colorado initiative, summed it up this way: “It’s a historic one, man.”

And here are excerpts from this Washington Post piece, headlined "Legal battle looms over marijuana initiatives":

The Justice Department said it was reviewing the initiatives but would not comment further on how it would respond.  A spokeswoman for the Drug Enforcement Administration said that its enforcement of federal law, which bans production, possession and sale of marijuana, “remains unchanged.”...

Colorado Gov. John Hickenlooper (D) on Wednesday signaled his awareness of those conflicts, cautioning voters that it would take time to deal with the implications of the initiative. “The voters have spoken and we have to respect their will,” Hickenlooper said in a statement....

Hickenlooper’s office called the Justice Department on Wednesday to get guidance on how the state should proceed.  Eric Brown, a spokesman for Hickenlooper, said that Holder is scheduled to speak directly to the governor Thursday or Friday.

Washington Gov. Chris Gregoire (D) also indicated that she is uncertain about whether there will be a showdown with the federal government.  “The voters have decided to decriminalize marijuana possession and tax its sale and we will follow the will of the people,” Gregoire said in a statement.  “We are entering uncharted waters and many questions lie ahead as we work to implement this law.  Because marijuana is still illegal at the federal level, we are unsure how the federal government will proceed.”  Gregoire said that the state’s Liquor Control Board will be responsible for establishing the licensing and inspection procedures for the new measure over the next year.

November 8, 2012 at 12:09 AM | Permalink


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The federal government has no business involving itself in marijuana issues.

Posted by: Thomas Jefferson | Nov 8, 2012 5:18:25 PM

Given that it is likely that people from other states will be going to Colorado (and Washington) to purchase marijuana and then bringing it back home for re-sale,regulating the sale of marijuana would seem to fit perfectly within the interstate commerce clause.

Posted by: tmm | Nov 9, 2012 10:05:02 AM

Right you are, tmm, because control/punishment enthusiasts should never miss an opportunity to twist, stretch and exploit the Commerce Claus...particularly if doing so advances their fortunes in law enforcement/incarceration industries.

Posted by: John K | Nov 9, 2012 11:14:27 AM

John, how is that any more of a twist than saying hotels are subject to civil rights laws because an out-of-state traveler might stay at that hotel or a farmers small wheat field is subject to federal regulation because it would compete with wheat from other states or that the FCC can regulate radio and television because they are instrumentalities of interstate commerce. IF FDA regulation of controlled substances and other medical products is constitutional, than a federal law criminalizing some controlled substances is equally constitutional.

There is a difference between saying that marijuana and alcohol and tobacco and perhaps other controlled substances should not be illegal and saying that whether they are allowed and under what circumstances is none of the federal government's business.

Posted by: tmm | Nov 9, 2012 3:55:34 PM

tmm --

I'll be interested to see whether John K can answer your question. The issue whether drug regulation is the federal government's business was settled in Raich. It's depressing to have to keep reminding people that Raich was written by Justice Stevens, agreed to by all the liberals and by Justice Kennedy, and concurred in by Justice Scalia. With that kind of consensus, it's just very hard to pretend that the holding is poorly reasoned.

Maybe John K believes he's a better thinker than all those Justices. I guess we'll find out.

Posted by: Bill Otis | Nov 9, 2012 10:10:47 PM

"With that kind of consensus, it's just very hard to pretend that the holding is poorly reasoned."

Ask Randy Barnett about that. I doubt he'd agree.

Posted by: Gritsforbreakfast | Nov 10, 2012 7:28:09 AM

I won't cede the whose-the-better-thinker crown to anyone -- Supreme or not -- who asserts with a straight face that a little, middle-age woman with a few marijuana plants in her home constitutes a significant impediment to the government's interest in regulating interstate commerce. Raich is the poster case for how far out of hand things have gotten with the Commerce Clause.

They really shouldn't even call it that any more. Call it what it has become: the National Police Force Establishment Clause.

Posted by: John K | Nov 10, 2012 2:17:35 PM

"Ask Randy Barnett about that. I doubt he'd agree."

The losing side's attorney never does. This is news?

I have great respect for my colleague Professor Barnett, and just last week used excerpts from a 2005 law review article of his to teach my class about Constitutional and statutory interpretation. But neither he nor I nor any law professor decides the law. The Supreme Court does, and the notion that a bunch of amateurs on an Internet forum are sharper than Scalia, Stevens, etc. is beyond laughable. It's a testament to the amateurs' ego, not their self-certified brilliance.

Posted by: Bill Otis | Nov 10, 2012 5:56:10 PM

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