The Obama administration is
strategizing how to fight legal pot in Colorado and Washington,
reports Charlie Savage of The New York Times. While
“no decision” is “imminent,”
Savage reports that senior level White House and
Justice Department officials are considering “legal action against
Colorado and Washington that could undermine voter-approved
initiatives.”

A taskforce made up of Main Justice, the DEA, the State
Department, and the Office of National Drug Control Policy is
currently considering two courses of action, reports Savage:

One option is for federal prosecutors to bring some cases
against low-level marijuana users of the sort they until now have
rarely bothered with, waiting for a defendant to make a motion to
dismiss the case because the drug is now legal in that state. The
department could then obtain a court ruling that federal law trumps
the state one.

A more aggressive option is for the Justice Department to file
lawsuits against the states to prevent them from setting up systems
to regulate and tax marijuana, as the initiatives contemplated. If
a court agrees that such regulations are pre-empted by federal
ones, it will open the door to a broader ruling about whether the
regulatory provisions can be “severed” from those eliminating state
prohibitions — or whether the entire initiatives must be struck
down.

Option one could possibly mean that Obama would break a campaign
promise he’s already split hairs over: That his administration will
not go after people who smoke marijuana for medicinal reasons.
Savage makes it seem as if there are people in Washington who are
more than happy to take that route: Apparently some law
enforcement officials are so “alarmed at the prospect that
marijuana users in both states could get used to flouting federal
law openly,” that they “are said to be pushing for a stern
response.”  

On Nov 12, Jacob Sullum
answered the question, Can the Feds stop Colorado and
Washington from legalizing pot? 

According to the Supreme
Court, a “positive conflict” exists “when it is impossible to
comply with both state and federal law.” But neither
Colorado’s Amendment
64 nor Washington’s Initiative
502 requires anyone to grow or sell marijuana. One can
readily comply with both state and federal law simply by choosing
not to go into the cannabis business. Both laws are written so that
they merely explain the criteria people must satisfy to avoid
prosecution for marijuana offenses under state law.
“Notwithstanding any other provision of law,” begins the section of
Amendment 64 dealing with marijuana growers and sellers, “the
following acts are not unlawful and shall not be an offense under
Colorado law.” I-502 likewise says “the
production, possession, delivery, distribution, and sale of
marijuana in accordance with the provisions of this act and
the rules adopted to implement and enforce it, by a validly
licensed marijuana producer, shall not be a criminal or civil
offense under Washington state law.”

In other words, both laws define what counts as a crime under
state law, a power that states indisputably have. “You’re not
actually creating a positive conflict with the federal [law],” says
Alison Holcomb, director of the Yes on I-502 campaign, “because the
federal government remains free to enforce federal law within the
state, and you’re not requiring anybody to perform an act that
would require a violation of federal law. You’re simply setting out
what the rules are for avoiding arrest and prosecution under state
law.”

Nor does either law compel state employees to violate the
Controlled Substances Act by “possessing” marijuana for regulatory
purposes. Under I-502, testing of marijuana will be handled by
private laboratories. Amendment 64 likewise envisions “marijuana
testing facilities” that will be “licensed to analyze and certify
the safety and potency of marijuana.”

What about collecting tax revenue from marijuana sales? Legally,
those provisions could be the most vulnerable aspects of these laws
(although it looks like Colorado’s pot
tax may never take effect). Jonathan Caulkins, a drug
policy expert at Carnegie Mellon University,
tells Politico, “The argument has been made— and I’ve
never heard anybody successfully rebut it—that the federal
government can seize the proceeds of any illegal activity. By that
logic, it could seize the tax revenues—even from the states.” But
in Marijuana
Legalization: What Everyone Needs to Know, Caulkins and
his three co-authors observe that although “it has been argued that
the federal government could confiscate such revenues as proceeds
of illegal transactions…as far as we know the federal government
has not touched a penny of the fees and tax revenues generated from
medical marijuana.”

And here’s Ethan Nadelmann, head of the Drug Policy Alliance,

hoping against hope that Obama will get on board.