The November 2012 Election will be remembered for many reasons. One of the most memorable and toughly fought presidential campaigns ended in a decisive win for President Barack Obama. The balance of power in the United States Congress remained unchanged, but this 113th Congress will begin its session with twenty female senators, the most in history. However, two other victories deserve the nation’s attention. Once the votes were tallied, it became clear a majority of Washington and Colorado citizens agreed with a referendum legalizing the recreational use of marijuana. These decisions deserve attention not necessarily because of their controversial outcomes, but because of their implications for the relationship between the state and federal government.
The origin of federalism can be traced back to our nation’s colonial beginnings, when governing bodies took their shape. Power was to be separated vertically, between individual states and the nation as a whole. Indeed, this notion of federalism was codified in the Tenth Amendment to the Bill of Rights. The Amendment 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.” Whether the passage of Colorado and Washington’s new marijuana laws fall within that power reserved to the states remains to be seen.
Colorado’s amendment (“Amendment 64”) will change the state constitution by legalizing and regulating the mechanisms by which marijuana is produced, possessed (up to an ounce for an individual person), and distributed. Similar to the legal drinking age, Amendment 64 only legalizes participation by those twenty-one and older. The measure passed in Washington imposes a twenty-five percent tax on a marijuana grower who sells the substance to a processor. The tax is then imposed for a second time if that processor sells to a retailer, and a third time when the retailer sells to a customer. It is unclear whether the succession of taxes will inhibit production and distribution, or simply become a source of revenue for the state of Washington.
The primary national proponent of marijuana legalization is the National Organization for the Reform of Marijuana Laws (“NORML”). The day after the elections, NORML’s executive director Allen St. Pierre wrote, “Yesterday’s elections have forever changed the playing field regarding cannabis prohibition laws in America (and probably in large parts of the world, too).” In support of the legalization, NORML points to the benefits of making marijuana more easily available. Legalizing marijuana could save the United States approximately ten billion dollars each year – money that would normally be put toward enforcing marijuana prohibition. In addition, according to NORML, criminal cases brought against more than 750,000 people arrested each year for possession would be eliminated. And finally, NORML’s main argument is that alcohol and tobacco (also referred to by NORML as “recreational drugs”) are much more dangerous than marijuana, as the overuse of marijuana poses little to no risk of death.
Colorado Governor John Hickenlooper recognizes his state has spoken, but must ultimately answer to the federal government. “This will be a complicated process, but we intend to follow through,” Hickenlooper noted. “That said, federal law still says marijuana is an illegal drug.” In terms of federalism, this is where the rubber meets the road.
University of Denver law professor Sam Kamin acknowledged the rights of the federal government to ignore Amendment 64 and the Washington measure. “Every store that sells marijuana here is violating federal law,” Kamin said. “The federal government could come in and seize assets. They could charge people criminally. They could send people to jail for scores of years. They have chosen, so far, not to do that.”
The record of inaction in Colorado is not likely to continue. The day after the election, the Drug Enforcement Administration (“DEA”) released a statement that said that DEA’s “enforcement of the Controlled Substances Act remains unchanged.” The statement went on to note, “In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance.” In its opening declarations, the Controlled Substances Act states one of its many purposes: limiting access to harmful substances. The Act declares, “The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.”
Both Washington and Colorado continued to move forward with reconciling the will of the people with that of the federal government. On November 9, 2012, Governor Hickenlooper and Colorado’s attorney general spoke with United States Attorney General Eric Holder about the federal response to Amendment 64. The same day, prosecutors in some of Washington’s largest counties dropped all pending misdemeanor charges for marijuana possession.
While the forthcoming federal response remains to be seen, many point to the fact that the federal government, specifically the DEA, has “turned a blind eye” to the seventeen states where the medicinal use of marijuana is legal. If Amendment 64 remains unchanged, it will take effect on January 1, 2013, while Washington’s law is set to take effect on December 6 of this year. The outcome will undoubtedly affect debates and legislation in other states, as well as countries around the world – particularly the ones heavily affected by drug-related violence.
James Madison, in his Federalist Paper No. 10, recognized the importance of balancing the interests of the federal government with the wishes of the states. He wrote that one of the central aims of federalism was “to preserve the spirit and the form of popular government.” The balance of power and tension between the federal government and the states will be certainly be important to watch over the coming weeks as decisions are made concerning the legality of marijuana usage.