Post Election: Will the Federal Government Challenge States’ Decision to Legalize Marijuana?

Among the many interesting stories emerging from election night was the referendum votes in the states of Colorado[1] and Washington[2] to legalize the use of marijuana in their respective states.  Young voters and civil libertarians, in particular, were thrilled by the result of the vote.

However, issues surrounding the ballot measures remain.  Marijuana is considered a drug at the federal level[3], and thus, may be challenged in court by the federal government.

Should the Attorney General challenge these laws?  Are these laws protected under the 10th Amendment of the Constitution, which states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The federal government’s authority to regulate marijuana and other substances is derived from the Commerce Clause.  States’ rights advocates, even those adamantly opposed to the legalization of marijuana in their states, are uncomfortable with what they perceive as the federal government’s infringement on state sovereignty.[4]  Among those are Colorado’s Republican attorney general, John Suthers, who has vowed to defend the State’s constitutional amendment in a legal battle with the federal government, despite his opposition to the measure.

Thus far, the Obama Administration has not indicated whether or not a challenge is forthcoming.  Recent history suggests, however, they are unlikely to do so.  Currently, 17 states have laws that allow for the use of marijuana in some narrow capacity, and those have not been challenged by the Obama administration.

Cynics suggest the Obama Administration may not want to ruffle the feathers of a key Democrat constituency group – young voters.  Others insist that the President must execute the laws of the United States faithfully, regardless of the issues and voting bloc at stake.  The easiest solution to this problem would be to simply reclassify marijuana; it is currently a Schedule 1 substance under the Controlled Substances Act.  By changing its classification, as marijuana advocates have pushed for, the federal government would allow states to determine for themselves how to regulate marijuana.

The issue is far from settled and it will be interesting to see how things play out over the next few months.  The voters in these states have spoken.  They do not view the recreational use of marijuana as dangerous.  How government officials respond, at both the federal and state level, remains to be seen.

[1] Amendment 64 in Colorado will alter the state constitution to legalize and regulate the production, possession, and distribution of marijuana for people age 21 and older

[2]Washington’s Initiative 502 includes a 25% tax imposed when the grower sells marijuana to a processor, again when the processor sells it to a retailer, and a third time when the retailer sells it to a customer.

[3] Controlled Substance Act


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