Amazingly, recreational marijuana is now perfectly legal in two states. But it's still illegal according to the feds
Proponents of legalizing marijuana for recreational use have been putting the idea up for popular vote since 1972, and voters have never signed on — until Nov. 6. When residents of Colorado and Washington (but not Oregon) woke up Wednesday morning to an America where Barack Obama was still president, Democrats still controlled the Senate, and Republicans still controlled the House, they also learned that in their states it's legal for adults to smoke and sell pot "for fun and profit," as The Economist puts it. It is still, of course, a criminal offense to grow, sell, or consume marijuana according to the federal government, however. So what happens next?
Pot is really legal in Colorado and Washington state?
It will be soon. Effective Dec. 6 in Washington and within 60 days in Colorado, state authorities can't arrest or prosecute people over 21 who have up to an ounce of pot or consume it in private. In Colorado, you can also grow up to six marijuana plants and give an ounce to other adults "without remuneration." In Washington, there's a new legal impairment limit for driving under the influence of pot. The decriminalization is the easy part. Now, each state has roughly a year to implement "the next big step — transforming the marijuana black market into a closed, regulated, and taxed marketplace," says Jonathan Martin at The Seattle Times.
And it's illegal under federal law?
Yes. As federal the Drug Enforcement Administration (DEA) reminded everyone on Wednesday, marijuana is classified as a Schedule I controlled substance under the 1970 Controlled Substance Act, and that law "remains unchanged." The governors of Washington and Colorado were opposed to the measures, but both said they will respect the will of the people. Still, "we are entering uncharted waters and many questions lie ahead," most notably over what the Obama administration will do, says outgoing Washington Gov. Chris Gregoire (D). "Don't break out the Cheetos or Goldfish too quickly," cautions Colorado Gov. John Hickenlooper (D).
What can the feds do?
"What happens next depends entirely on how the Obama administration's Justice Department chooses to use its power," says Emily Bazelon at Slate. The feds "could come in and seize assets" of businesses selling pot, University of Denver law professor Sam Kamin tells CNN. "They could charge people criminally. They could send people to jail for scores of years," though "they have chosen, so far, not to do that" with medical marijuana. They can also sue the states to block them from creating legal drug markets, University of Washington law professor Hugh Spitzer tells The Seattle Times. "I'm not saying they will. I'm saying they could." What they can't do, Spitzer adds, is turn back the clock. "Under the U.S. Constitution, the federal government can't force a state to make something illegal."
What will the Obama administration do?
That's "a billion dollar question," Kamin tells CNN. The Justice Department has only said it's reviewing the new laws, but "history isn't encouraging for the pot smokers," says Slate's Bazelon. Facing a mushrooming of sometimes-sketchy marijuana dispensaries, the Justice Department closed down at least 600 of them in California since October 2011 and took other actions against dozens more. The legal pot market "simply can't go on the way it is," Kamin says. "It can't be a big industry and a federal crime at the same time."
So there's a crackdown coming?
Not necessarily, says Bazelon. There are at least "a few glimmers of hope" for pot advocates: In July, Marc Ambinder reported in GQ that in a second term, Obama wants to "pivot" away from a Drug War he's long seen as a failure; and more concretely, Attorney General Eric Holder notably declined to issue a warning that he would "vigorously enforce" federal drug law, like he did before California defeated a 2010 measure to legalize recreational pot — even though nine former DEA heads publicly urged him to do so again. There's another silver lining for Washington and Colorado potheads, Vanderbilt University law professor Robert Mikos tells Bloomberg News: "As a practical matter, the federal government doesn't have the resources to enforce the federal ban that rigorously."
Why is pot illegal, anyway?
It was legal for centuries, until 1937, when ambitious Federal Bureau of Narcotics chief Harry Anslinger used racially divisive "Reefer Madness" scare tactics to dupe Congress into passing the Marijuana Tax Act, says Martin A. Lee at The Daily Beast. When pot use spread to the white, mainstream counterculture in the 1960s, a "Machiavellian" Richard Nixon beefed up the laws to burnish his anti-crime image and as "a symbolic means of stigmatizing youth protest, antiwar sentiment, rock 'n' roll music, and other expressions of cultural ferment." The War on Drugs has thrived since then, eating up taxpayer dollars, needlessly ruining lives, and denying ailing people a cheap, natural salve. Will the new laws in Colorado and Washington prove effective, safe, and popular? says Bazelon. I have no idea, but "two states are offering themselves up as laboratories, in the classic federalist tradition of experimentation. The Justice Department should let them try."
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