Don't bust pot states, Obama

Voters in Washington and Colorado have OK'd marijuana legalization. The president should respect their will

Published November 8, 2012 12:30PM (EST)

          (AP/Evan Vucci/<a href=''>Vakhrushev Pavel</a> via <a href=''>Shutterstock</a>/Salon)
(AP/Evan Vucci/Vakhrushev Pavel via Shutterstock/Salon)

Barack Obama has a chance to do nothing. Over the past four years, progressives have, with a few noisy exceptions, continued to give their time, their money and their votes to President Obama’s political agenda, even though on a number of domestic issues the president has governed more like an Eisenhower-era Republican than a proud heir to the achievements of the New Deal and the Great Society.

More painfully and problematically, progressives have watched the president they elected conduct a foreign policy that, in its embrace of the phony “war on terror” and its accompanying contempt for basic principles of civil liberty, has often been hard to distinguish from the immoral and destructive policies of the president who preceded him.

None of this is to deny that Obama’s reelection is a major victory for progressives – if only because the alternative was so much worse. But, now that he has completed his last electoral campaign, President Obama has a chance to do something very significant for progressive politics in America. Indeed, on this particular issue we progressives don’t need Obama to do anything at all -- because he can advance an important cause by simply doing nothing.

What the president can do is to instruct his Department of Justice to respect the political process in Colorado and Washington, which yesterday became the first states to legalize the regulated sale of marijuana for non-medicinal purposes. Marijuana remains illegal under federal law, and the Supreme Court ruled recently that the federal government can choose to overrule state laws on the matter.

But the fact that the federal government has the legal power to do something does not mean the government has any obligation to do that thing. Enforcing federal marijuana law against the states is purely a matter of prosecutorial discretion. Therefore President Obama is perfectly within his rights to order Attorney General Holder to instruct U.S. attorneys in Colorado and Washington not to interfere with the implementation of the new laws adopted by the people of these states.

Governments make similar decisions every day. For example, if you contribute $20 to your office’s NCAA basketball tournament pool next March, you will probably be committing what is technically a crime, but one that no sensible official would ever prosecute. Indeed our criminal justice system would break down completely if the government tried to prosecute every type of “crime” on the statute books.

The fight against marijuana prohibition was opposed ferociously by the political establishment here in Colorado: the current governor and the state’s previous Democratic and Republican governors all opposed the measure, in the context of a well-funded campaign designed to preserve this particularly perverse battlefield in the war on drugs. The proponents of a sane drug policy won anyway, as Coloradans all across the political spectrum refused to surrender to the fear-mongering of the prohibitionists.

Marijuana legalization may not seem like a particularly important issue. It is – because a rational approach to marijuana regulation is the first step toward treating drug addiction as a medical problem, rather than a law enforcement issue. This in turn would be an important step toward combating the catastrophic social consequences of a criminal justice system that has put an astounding 2.5 million Americans in prisons and jails on any given day.

Allowing states to adopt more rational drug policies is the absolute minimum that progressives ought to expect out of the Obama administration in regard to such matters. When it comes to ending the federal government’s absurd war on marijuana, our plea to Barack Obama couldn’t be simpler: don’t just do something, stand there.

By Paul Campos

Paul Campos is a professor of law at the University of Colorado at Boulder.

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2012 Elections Colorado Marijuana Legalization Medical Marijuana Pot Washington