In passing amendments in Colorado and Washington state for the first time legalizing the recreational use of marijuana, voters may have placed themselves in the cross hairs of the federal government — which steadfastly has maintained that possession of the drug remains a federal crime.
The amendments, which allow those 21 and older in Washington state to purchase an ounce of marijuana from a licensed retailer and in Colorado to possess an ounce of the drug and grow as many as six plants in private, set the stage for a possible showdown with the Obama administration and a demand for action on the question by Congress.
A legal battle with the Justice Department is possible, even probable.
Although the amendments will end the enforcement of existing marijuana laws by state authorities in Colorado and Washington, the Justice Department said Wednesday that its enforcements of federal drug laws “remain unchanged.” The federal law, the Controlled Substances Act, lists marijuana as a Schedule 1 drug, meaning it has a high potential for abuse and has no accepted medical use. Other Schedule 1 drugs include heroin, LSD and Ecstasy.
Colorado Gov. John Hickenlooper, a Democrat who opposed the amendment, said Wednesday that voters in his state “have spoken, and we have to respect their will.” He called implementation of the law a “complicated process” but said state authorities intended to “follow through” on it.
“That said, federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or Goldfish too quickly,” he said, adding that his state still must navigate federal laws before residents can buy and sell marijuana legally. The Colorado amendment is scheduled to go into effect in June. The Washington law starts in December 2013.
A watershed moment
Ethan Nadelmann, executive director of the Drug Policy Alliance, which worked closely with local and national allies to draft the amendments, build coalitions and raise funds, said Colorado and Washington are not just the first U.S. states to legalize the recreational use of marijuana, but also the first political jurisdictions in the world to approve regulating, taxing and controlling marijuana similar to alcohol.
“The victories in Colorado and Washington are of historic significance not just for Americans but for all countries debating the future of marijuana prohibition in their own countries,” Mr. Nadelmann said. “This is now a mainstream issue, with citizens more or less divided on the issue but increasingly inclined to favor responsible regulation of marijuana over costly and ineffective prohibitionist policies.”
He said the campaign in Washington state gained “strength and legitimacy” from an unprecedented number of endorsements by elected officials as well as former and current law enforcement officials.
“Marijuana policy reform remains an issue where the people lead and the politicians follow,” he said, “but Washington state shows that many politicians are beginning to catch up.”
Mr. Nadelmann also described as “notable” the silence of Obama administration officials who two years ago spoke out against California’s Proposition 19 but refrained from intervening this year.
“That bodes well,” he said, “for both states’ prospects of implementing their new laws without undue federal interference.”
He attributed the silence of the Obama administration — and of the Mitt Romney campaign — to “political judgments” based on a Gallup poll last year that found for the first time that 50 percent of Americans supported making marijuana legal and 46 percent were opposed. He said public support has shifted dramatically over the past two decades — especially over the past five years — as majorities of men, 18- to 49-year-olds, liberals, moderates, independents, Democrats and voters in Western, Midwestern and Eastern states now support making marijuana legal.
Mr. Nadelmann said the Obama administration remained silent on the Colorado and Washington state amendments despite requests by former federal drug-policy officials that the administration denounce marijuana-legalization measures.
U.S. Attorney John F. Walsh said in a statement only that the Justice Department’s enforcement of the Controlled Substances Act “remains unchanged.” His spokesman, Jeff Dorschner, also said that “no further statement or comment, on or off the record, will be made at this point in time.”
Justice Department spokeswoman Nanda Chitre added that the department is reviewing the ballot initiatives but would have no additional comment at this time.
Colorado moving ahead
Colorado Attorney General John W. Suthers said in a statement that despite his “strongly held belief that the legalization of marijuana on a state level is very bad public policy,” voters can be assured that his office will move forward in assisting its implementation. But he warned Colorado residents that the federal government still has the ability to criminally sanction possession, use and distribution of marijuana, even if grown, distributed and used in a single state — an enforcement responsibility upheld by the U.S. Supreme Court.
“Therefore, absent action by Congress, Coloradans should not expect to see successful legal challenges to the ability of the federal government to enforce its marijuana laws in Colorado,” he said.
Mr. Suthers called on the Justice Department to make known its intentions regarding prosecution of activities sanctioned by the state’s new law — particularly on large wholesale growers — as soon as possible to help state regulators and Colorado residents make decisions about implementation of the new law.
He also noted that while proponents of the amendment told Colorado voters that the law would impose a surtax of up to 15 percent on marijuana sales that would result in up to $40 million each year going to schools in the state, the amendment did not comply with required language under the Taxpayer Bill of Rights, and “no such tax will be imposed.”
“Instead, it will be up to the Colorado legislature whether to refer such a tax to the voters and up to the voters of Colorado whether to actually impose the tax,” he said.
Beau Kilmer, co-director of the Rand Drug Policy Research Center, said the votes in Colorado and Washington state represent “uncharted water” in the drug legalization movement. Although much of the focus will be on how federal officials respond, he said, little-known state agencies will play key roles.
“A lot of how this plays out will depend on the decisions of the state agencies regulating this,” he said.
He also said he expects ballot initiatives elsewhere in the country, though other states will be watching for any sign of intervention by federal authorities.
“How the federal government responds will send a message to other states,” Mr. Kilmer said.
While Colorado and Washington state are the first to legalize recreational marijuana, medical marijuana is legal in 17 states and the District of Columbia. It has been estimated that Los Angeles County has more medical marijuana shops than liquor stores. Despite state determinations that medicinal marijuana shops are legal, they have been the targets of raids by the Drug Enforcement Administration, prosecution by the Justice Department and sanctions by the Internal Revenue Service.
In 2010, when a ballot initiative to legalize marijuana in California was offered, Attorney General Eric H. Holder Jr. issued a warning letter saying the Justice Department would “vigorously enforce” federal drug laws if the state initiative passed — which it did not. Mr. Holder did not publicly comment on this year’s efforts to legalize marijuana in Colorado and Washington state.
While support for the amendments in Colorado and Washington state was bolstered by supporters who noted that the drug’s use for medical purposes was allowed in 17 states, the Denver-based National Conference of State Legislatures said attempts since 1972 to legalize marijuana through the ballot box have failed in California, Alaska, Oregon, Colorado and Nevada.
• Valerie Richardson in Denver contributed to this report.