Don’t Touch Their Stash!

Why Eric Holder should let Colorado and Washington experiment with drugs.

Supporters of legalized marijuana light up.
Supporters of legalized marijuana light up in Denver on April 20

Photo by Marc Piscotty/Getty Images.

It’s legal to smoke pot in Colorado and Washington state now—except that it’s not. Colorado voters passed an initiative Tuesday allowing possession of 1 ounce and six plants growing in a private, secure space. Washington voters said people 21 and older could buy an ounce from a licensed seller. But the federal government has the last word, and its ban on possession and distribution of marijuana stands.

What happens next depends entirely on how the Obama administration’s Justice Department chooses to use its power. The feds can crack down, or they can let a new haze dawn. There’s plenty of historical reason to think the Obama administration will go with the hard line—and a few glimmers of hope that it won’t.

So far, amnesty isn’t in the offing. “The Department of Justice’s enforcement of the Controlled Substances Act remains unchanged,” a spokesman for the U.S. Attorney’s Office in Colorado said Tuesday night. “We are reviewing the ballot initiative and have no additional comment at this time.” Colorado Gov. John Hickenlooper, who opposed the marijuana legalization measure, couched his own response carefully. “The voters have spoken, and we have to respect their will,” Hickenlooper said in a statement. “This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or Goldfish too quickly.”

Right. History isn’t encouraging for the pot smokers. The Colorado and Washington initiatives put the Justice Department in an awkward position, but then again, so did California’s medical marijuana law, among others, and that one has gone badly for marijuana growers and sellers. From October 2011 to October 2012, federal law enforcement shut down 600 dispensaries. It was the biggest crackdown since California legalized medical marijuana in 1996. Prosecutors also tried to seize the assets of sellers and their landlords and threatened them with criminal charges.

This is not a tale of the federal government following the lead of the states. It’s a tale of the Justice Department asserting its authority against the state’s voters and state sovereignty. The federal government has this authority because of the 2005 Supreme Court decision that essentially ended the march of federalism—the legal doctrine that the court’s conservatives previously invoked to limit Congress’s powers to make laws that affect commerce among the states. You may vaguely remember this one from the huge fight over Obamacare. In the 2005 case, Gonzales v. Raich, Angel Raich was a sick woman in California who said medical marijuana was the only way she could combat excruciating, life-threatening pain. She argued that in light of the state’s 1996 legalization of medical marijuana, the Justice Department couldn’t enforce the Controlled Substances Act against her—in other words, the feds couldn’t take away her pot. Raich lost 6-3, with conservative Justice Antonin Scalia joining the liberal-centrist wing of the court. When it came to a choice between a federal crackdown on pot smokers and a state-led push to leave them alone, Scalia lost his appetite for dismissing Congress and federal prosecutors in favor of the states. (I will not make a joke here about his appetite for pot brownies, but you can if you like.)

Five years later, California voters considered a ballot measure to legalize recreational use of marijuana—the kind of measure that Colorado and Washington just passed. Here’s what the Obama administration’s Office of National Drug Control Policy had to say: “Regardless of state laws to the contrary, there is no such thing as ‘medical’ marijuana under federal law.” A month before the vote, Attorney General Eric Holder issued a stern letter stating his intent to “vigorously enforce” federal drug law. California voters rejected the ballot measure.

If this all sounds hopeless for Colorado and Washington’s tokers, though, consider two pieces of evidence that Holder may be shifting ground. The first is a report in GQ last summer claiming that President Obama wants to “pivot” on the war against drugs in his second term. “From his days as a state senator in Illinois, Obama has considered the Drug War to be a failure,” Marc Ambinder wrote. This has widely been read as a sign that the Justice Department will ease up on marijuana enforcement, even though that’s not what happened this fall in California. I’m not sure I see it, but I’m more intrigued by Holder’s decision not to make a stern statement before Tuesday’s election like the one he made in 2010, even when he came under public pressure from former Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy. These officials pointed to the upcoming initiatives in Colorado and Washington and called legalizing marijuana a threat to public health and safety and a “danger that touches every one of us.” One former drug czar called it “shocking” that Holder hadn’t spoken up.

But he didn’t, and meanwhile, legalizing pot in some form or fashion picked up an interesting array of supporters, from the Republican Senate candidate in Washington who called it a “thoughtful way forward” to evangelical leader Pat Robertson, conservative campaign spender David Koch, and Democratic Newark, N.J., Mayor Cory Booker. They’re all featured on the website of the group Marijuana Majority, and as the Atlantic’s Conor Friedersdorf pointed out last month, their public statements are proof that it’s time to stop laughing at the marijuana reform movement. We’ve all heard the jokes or made them ourselves, but there’s a serious cost-benefit analysis question here about whether the price of criminalizing the sale and use of pot is worth the cost in money and prison sentences.

Washington and Colorado’s voters have become the first to answer no since the first legalize marijuana state ballot measure in 1972. Maybe their voices will give Obama and Holder pause. They should. There are plenty of questions left to answer and thresholds to cross—how would a statewide marijuana market work? Would the government collect a sales tax? Amsterdam, anyone? Now two states are offering themselves up as laboratories, in the classic federalist tradition of experimentation. The Justice Department should let them try. The rest of the country can be the control group for now.