On Election Day, Washington State and Colorado became the first two states in the country -- and indeed the first political jurisdictions anywhere in the world -- to approve legally regulating marijuana like alcohol.
It would be a mistake to call these ballot initiative victories "pro-pot." Most of those who voted in favor don't use marijuana; indeed many don't like it at all and have never used it. What moved them was the realization that it made more sense to regulate, tax and control marijuana than to keep wasting money and resources trying to enforce an unenforceable prohibition.
Whether or not the two state governments move forward with regulating marijuana like alcohol will depend on two things: how the Obama administration, federal prosecutors and police agencies respond; and the extent to which the states' senior elected officials commit to implementing the will of the people. The fact that federal laws explicitly criminalize marijuana transactions, and that the federal government can continue to enforce those laws, means that federal authorities could effectively block the initiatives from being fully implemented. But there are also good reasons why the Obama administration should, and may, allow state governments to proceed as voters have demanded.
First, keep in mind that no one needs to do anything right away. The provisions legalizing personal possession of up to an ounce of marijuana, and (in the case of Colorado) also allowing the cultivation of up to six plants in the privacy of one's home, will become state law once the initiatives are certified in coming weeks. But those provisions, while contrary to federal law, are unlikely to excite the attentions of federal authorities, who will be more concerned with how the states propose to regulate larger scale production and distribution. The Colorado government, however, has until July 1, and the Washington State government until the end of next year, to issue a statewide regulatory plan. That affords plenty of time for consultation and dialogue.
Second, senior state officials, including Colorado's Governor Hickenlooper and Attorney General Suthers, as well as Washington's newly elected governor, Jay Inslee, and attorney general, Bob Ferguson, have all said that they will work to uphold the new laws, notwithstanding their pre-Election Day opposition. The two incoming officials in Washington may also be moved by the fact that the marijuana reform initiative garnered more votes than either of them did.
Third, whereas Attorney General Eric Holder warned California voters in October 2010 that the federal government would not allow the marijuana legalization initiative on the ballot at the time to be implemented if it won (which it did not), no such warning was forthcoming this year. Former drug czars and DEA chiefs banded together to urge Holder to speak out again, but both he and President Obama remained silent, perhaps influenced by polls showing strong support for marijuana legalization among young and independent voters in the swing state of Colorado and elsewhere.
Fourth, the Obama administration's actions, vis a vis the 18 states that have legalized medical marijuana, offers important insights. Federal prosecutors have acted most aggressively in those states, like Montana and California, which failed to adopt statewide regulation of the emerging industry, and have exercised the greatest restraint in places like New Mexico, Maine and Colorado, where state government is deeply engaged. President Obama has not entirely reneged on the pledge he made as a candidate in 2008, and reiterated as president in 2009, that the federal government would refrain from prosecuting medical marijuana providers operating legally under state law. He has the authority to declare a similar policy of restraint regarding the new laws in Colorado and Washington.
Fifth, in my conversations with foreign leaders, major Democratic Party donors and senior political advisers who have discussed drug policy with the president over the past year, all say that Obama seems inclined to pursue further reform of drug policies in a second term. Nothing dramatic, to be sure, but there's a sense that he and those close to him get it -- and will say and do things in a second term that they didn't during the first.
Will federal prosecutors and police agents continue to repeat the mantra that "it's all illegal under federal law" and that the federal Controlled Substances Act trumps all state laws? Yes, of course. But they're up against a powerful host of arguments that also demand deference. These new laws were passed by voter initiatives, which represent the clearest expressions of the will of the people. The final tallies were consistent with public opinion polls earlier in the year, before anyone had spent a penny on political advertising. Voters clearly knew what they were voting for.
Effectively implemented, the new laws could offer fiscal benefits in terms of reducing criminal justice costs and increasing tax revenues, public safety benefits in terms of transforming a criminal, underground market into a legally regulated above-ground part of local economies, and public health benefits in terms of regulating the quality and potency of substances consumed by millions of Americans. They also, it must be said, advance the cause of freedom.
"It is one of the happy incidents of the federal system," Justice Louis D. Brandeis wrote (in dissent) in 1932, "that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Not one but two courageous states have chosen to serve in this way. President Obama should do everything in his power to allow them to do it right.