Four Depressing Reasons to Hope Obama Won't Interfere With Pot Legalization

In a Huffington Post essay, Drug Policy Alliance Executive Director Ethan Nadelmann suggests some reasons to be optimistic that the Obama administration will not try to obstruct implementation of the marijuana legalization initiatives approved by voters in Colorado and Washington last week. Here are his main points, along with my reasons for skepticism:

No one needs to do anything right away….The Colorado government…has until July 1, and the Washington State government until the end of next year, to issue a statewide regulatory plan. That affords plenty of time for consultation and dialogue.

We've had 16 years (since California adopted the first medical marijuana law) for "consultation and dialogue" regarding patients' access to cannabis, but so far the feds have not agreed to let states go their own way on this issue. Obama said he would but didn't. Why will the story be different with recreational use?

Whereas Attorney General Eric Holder warned California voters in October 2010 that the federal government would not allow the marijuana legalization initiative on the ballot at the time to be implemented if it won (which it did not), no such warning was forthcoming this year. Former drug czars and DEA chiefs banded together to urge Holder to speak out again, but both he and President Obama remained silent, perhaps influenced by polls showing strong support for marijuana legalization among young and independent voters in the swing state of Colorado and elsewhere.

Perhaps, but with Obama's re-election the danger of alienating those voters has passed. In 2010 Holder declared, "We will vigorously enforce the [Controlled Substances Act] against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law." After the Colorado and Washington initiatives passed last week, the Justice Department said "the Department's enforcement of the Controlled Substances Act remains unchanged." Hard to detect a shift there.

[With regard to medical marijuana,] federal prosecutors have acted most aggressively in those states, like Montana and California, which failed to adopt statewide regulation of the emerging industry, and have exercised the greatest restraint in places like New Mexico, Maine and Colorado, where state government is deeply engaged. President Obama has not entirely reneged on the pledge he made as a candidate in 2008, and reiterated as president in 2009, that the federal government would refrain from prosecuting medical marijuana providers operating legally under state law. He has the authority to declare a similar policy of restraint regarding the new laws in Colorado and Washington.

Obama's re-election slogan: "Vote for Obama; He Has Not Entirely Reneged on His Promises." I would like to believe that the Obama administration is willing to tolerate pot stores that are explicitly authorized by state law (as opposed to operating in a legal gray area, as dispensaries do in California). But that has not been the case in Colorado, where U.S. Attorney John Walsh has threatened state-authorized dispensaries and their landlords with forfeiture and prosecution (although the Marijuana Policy Project's Rob Kampia, like Nadelmann, argues that enforcement actions in Colorado have been relatively restrained).

In my conversations with foreign leaders, major Democratic Party donors and senior political advisers who have discussed drug policy with the president over the past year, all say that Obama seems inclined to pursue further reform of drug policies in a second term. Nothing dramatic, to be sure, but there's a sense that he and those close to him get it—and will say and do things in a second term that they didn't during the first.

I will believe this when I see something beyond wishing and hoping—such as commutations of the draconian drug sentences Obama used to condemn. Although it is entirely within his power to ameliorate these injustices, Obama so far he has shortened exactly one sentence.

I am less encouraged by Obama's good intentions, which may not exist and in any event have not made a difference these last four years, than I am by the practical and legal limits on federal interference. DEA agents and U.S. attorneys can make trouble, but without state and local assistance they can enforce marijuana prohibition fitfully at best. Furthermore, the pre-emption argument against legalization in Colorado and Washington seems very weak, which may explain why the Justice Department has never deployed it against medical marijuana laws. Alex Kreit, a law professor who has studied the issue, tells the Drug War Chronicle:

Opponents of these laws would love nothing more than to be able to preempt them, but there is not a viable legal theory to do that. Under the anti-commandeering principle, the federal government can't force a state to make something illegal. It can provide incentives to do so, but it can't outright force a state to criminalize marijuana.

They know they can't force a state to criminalize a given behavior, which is why the federal government has never tried to push a preemption argument on these medical marijuana laws. The federal government recognizes that's a losing battle. I would be surprised if they filed suit against Colorado or Washington saying their state laws are preempted. It would be purely a political maneuver, because they would know they would lose in court.

Instead of asking whether the Obama administration will block legalization, maybe we should ask whether it can.