Pubdate: Fri, 09 Nov 2012
Source: Philadelphia Inquirer, The (PA)
Copyright: 2012 Philadelphia Newspapers Inc
Contact:  http://www.philly.com/inquirer/
Details: http://www.mapinc.org/media/340
Author: Emily Bazelon
Page: A37

HIGH NOON ON MARIJUANA LAWS

It's legal to smoke pot in Colorado and Washington state now - except
that it's not. Colorado voters passed an initiative this week allowing
possession of 1 ounce and six plants. Washington voters said adults
can 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 on the Obama Justice Department. The feds
can crack down or let a new haze dawn. There is plenty of history to
suggest the administration will go with a 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. Colorado Gov. John Hickenlooper noted that "federal law still
says marijuana is an illegal drug, so don't break out the Cheetos or
Goldfish too quickly."

The Colorado and Washington initiatives put the Justice Department in
an awkward position. But so did California's medical marijuana law,
and that has gone badly for growers and sellers. Over the past 12
months, federal authorities have shut down 600 dispensaries there.

The federal government is not following the states' lead. It's
asserting its authority over the states' voters and sovereignty. The
federal government has this authority because of a 2005 Supreme Court
case, Gonzales v. Raich, that essentially ended the march of
federalism, the legal doctrine the court's conservatives had invoked
to limit Congress' powers to make laws that affect commerce among the
states.

Angel Raich was a sick California woman who said 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. 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
favoring the states.

Five years later, California voters considered a ballot measure to
legalize recreational use of marijuana - as Colorado and Washington
just did. A month before the vote, Attorney General Eric Holder issued
a stern letter stating his intent to "vigorously enforce" federal drug
laws. 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.
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. I'm more
intrigued by Holder's decision not to make a stern statement before
Tuesday's election as he did in 2010, even when he came under public
pressure from former ranking drug enforcers. One former drug czar
called it "shocking" that Holder hadn't spoken up.

But he didn't, and, meanwhile, legalizing pot in some fashion picked
up an interesting array of supporters, from evangelical leader Pat
Robertson to conservative campaign spender David Koch and Democratic
Newark 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 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 question here
about whether criminalizing pot is worth the cost.

Washington and Colorado voters' answer is no. Maybe their voices will
give Obama and Holder pause. They should.

There are plenty of questions left to answer, but now two states are
offering themselves as laboratories in the classic federalist
tradition of experimentation. The Justice Department should let them
try. And the rest of the country can be the control group for now.
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MAP posted-by: Matt