A chorus of voices is howling at the federal government to do something about the growing snowball of state initiatives legalizing marijuana. Eight former Drug Enforcement Administration chiefs came out recently to urge the Obama administration to act to nullify initiatives passed in states such as Colorado and Washington. Failure to act, says former DEA administrator Peter Bensinger, could create "a domino effect" and set the stage for other states to pass such initiatives. The United Nations has even joined the conversation. The UN International Narcotics Control Board has strongly criticized such measures as violating international drug conventions.
This battle between state and federal wishes is said to be a battle of states' rights. However, marijuana is clearly a Schedule I drug in the Controlled Substances Act. The conflict between these and state initiatives such as Colorado's Amendment 64 brings into question how far the federal government will go into upholding the Supremacy Clause of the Constitution. Attorney General Eric Holder has said that a decision on how the Justice Department will deal with marijuana is coming "soon." This will be a tremendous decision that will set the tone for future battles over marijuana legalization between the states and the federal government.
The traditional weapon of the DEA has been raids in states that have passed any form of marijuana legalization, whether it be medical or general. When confronted with legalized medical marijuana in California, the DEA utilized raids on medical marijuana dispensaries to show the federal government's displeasure with the laws. However, a key statement by a DEA official shows the limits to this approach. Thom Mrozek, a spokesman for the agency, said "We couldn't do all of L.A. at once. There's just too many stores." In addition to that, local and city governments have fought the DEA in court and won victories against them, such as thwarting an attempt to shut down the Harborside Health Center, a medical marijuana dispensary.
Marijuana legalization such as in Colorado and Washington presents a far bigger problem. The federal government does not have the resources to pick up the slack that state and local police would handle in drug prosecutions. The federal government traditionally focuses on drug trafficking and not small possession cases. Nationally only 1,414 defendants faced a federal charge of drug possession in 2009 compared to 28,798 defendants facing federal drug trafficking charges. It would impossible for the DEA to complete take over the responsibilities of two complete state police departments, thus leaving them with the court system as their only effective way of striking back against these laws.
There are several ways in which the federal government could strike back against these laws. Federal prosecutors could arrest lower-level marijuana users, waiting for one to cite the state law and then asserting that federal laws overrides state laws as per the Supremacy clause of the Constitution. Another more aggressive way is to file lawsuits against states to prevent them from setting up systems to regulate and tax marijuana. If a court agrees that federal law is supreme, the door is open to a broader ruling of whether those regulatory systems can be severed from the overall law or if the law itself must be stuck down. Another option is that the federal government could withhold grants to states until anti-marijuana legislation is restored.
No matter what path the federal government takes, states are taking step to prepare to implement their marijuana legalization laws. Colorado has been deliberating on tax issues, tourism issues, and other aspects of Amendment 64. A poll in California has voters supporting marijuana legalization by 11 points (54% to 43%). Backers of Proposition 19, a failed 2010 proposition that would have legalized marijuana, says they are ready to try again in 2014. Even state level government officials have been striking out, with State Senator Daylin Leach proposing a bill to legalize and regulate marijuana.
The coming battle between the states and the federal government will prove to be an explosive showdown and an abject lesson to how the federal government is reacting to the growing unpopularity of the Drug War. Marijuana legalization is overwhelmingly supported by major parts of President Obama's base, liberals (69%) and young people (62%). Overall support of marijuana legalization is at an all time high. The coming battle between states such as Colorado and the federal government will set the tone for the future of marijuana legalization and the War on Drugs.