Colorado Proposition 64 Could Be Challenged by the Federal Government

On November 6, President Barack Obama came in second in the state of Colorado by a margin of 53,281 votes. He defeated Mitt Romney by 5% — rather it was Colorado's Proposition 64, legalizing recreational marijuana use, which surpassed the president's popularity.  

Voters in the state of Washington passed a similar ballot measure, though it polled behind Obama at 55.3% to his 55.6%. However, another recreational marijuana initiative in Oregon was rejected. 

Support for the bill came from more than just pot smoking voters. About 13.7% of Americans used the drug in 2009, high compared to 5.4% for the Netherlands — but not enough to win an election.  

Today, legalization proponents include such liberal groups as the ACLU, which strongly supports the initiatives. Many are alarmed by the cost of the War on Drugs, not merely in civil liberties, or the 100,000 Mexican lives lost to the conflict, or in American lives lost due to its effect of spreading HIV, but in dollars and cents.  

The Associated Press reported that direct costs of the War (primarily imprisonment and prosecution) have amounted to $1 trillion since 1971. The New York Times estimates nearly another $1 trillion since 1980 paid out to the Mexican cartels smuggling a wide range of drugs.  These costs seem like conservative figures, not counting the taxes that the prisoners might have paid if gainfully employed, or the costs of undocumented Mexicans taking refuge in the U.S. from the conflict and the poverty it has created, nor the interest on the debt taken out to pay for these programs.  

By itself, $2 trillion is just under 4% of the total household net worth of all Americans ($54.2 trillion in 2009) — about $6400 for every man, woman, and child in the country, perhaps half the total cost of military actions in Iraq, Afghanistan, and Pakistan since 2001. To the bottom 60% of households, whose share of the total net worth is only $2.3 trillion, that is money sorely missed.

In the next few weeks, the Obama administration must decide how to respond to these votes.  President Obama used marijuana during high school and college, and in 2004 he called the War on Drugs an "utter failure." Even so, the DEA has steadfastly refused to consider a petition to reschedule cannabis to acknowledge that it has medical use — even though 18 states now recognize medical use, and active cannabinoids from the plant are the basis of the prescription drugs Marinol and Sativex.  

In what many see as a retreat from a campaign promise "not to be using Justice Department resources to try to circumvent state laws," Obama has overseen a crackdown with SWAT-style raids on 170 medical marijuana dispensaries, which he has since explained by saying that "I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana."

Based on this precedent, it is possible, for example, that the DEA might leave alone those Coloradans who choose, as permitted by the text of the initiative, to grow up to three mature and three immature cannabis plants in an enclosed, locked space and not for public sale. After all, the Alaska Supreme Court has upheld a personal right to privacy to cultivate up to 25 marijuana plants since the 1975 Ravin v. State decision, and there have been no federal prosecutions of these producers under Obama's crackdown. 

That said, however, there would appear to be a difference between Alaska and the other states, namely, that it is isolated by sea, international borders, and rugged conditions, whereas private growers in Washington and Colorado might more easily be tempted to cross a state line for quick cash. Ultimately, the decision is one of "prosecutorial discretion," not law.

The range of decisions to be made by the administration include whether to take legal action to challenge the initiatives, varying degrees of federal enforcement action or threats thereof, or to accept the state laws as they stand. 

For Washington State, a particularly unpleasant option may be possible. Though so far there is no indication that it is under any sort of consideration — much of the state lies in what the ACLU dubs the "Constitution-Free Zone," where Border Patrol Interior Checkpoints can be constructed, within 100 miles of a border or seacoast. Though most of these checkpoints are near Mexico, one near Bangor, Maine has already made a major nuisance of itself for college students in the area.  The construction of such checkpoints might convert some potential state marijuana exports to a more conventional cartel smuggling model, or serve as a sort of collective punishment for voters by snarling traffic and inconveniencing commuters.

Today, few people really remember Tipper Gore and her PMRC, or the Communications Decency Act. Yet, Democratic support for initiatives of this type were so offensive to civil libertarians that some voted Libertarian or Green or simply sat the election out in disgust, thinking that a Bush victory wouldn't really make much of a difference.  

In the election we've just completed, contretemps between Ron Paul delegates and other Republicans helped to sow discord, sap morale, and scuttle the party's bid for reelection. Even the mere 1.3% of the vote won by drug reform candidates Libertarian Gary Johnson and Green Jill Stein was meaningful in this election, and may reflect factors influencing the decisions of other swing voters.  

If Obama fails to heed his own advice on this landmark issue, he might scuttle the Democratic candidate's chances in 2016 mere weeks after winning the 2012 election. But if he is willing to heed the call of voters and to spearhead a wider bipartisan effort to roll back this part of Prohibition consistently, at the national level, that will become one of his greatest accomplishments.