A rift is growing between Democratic governors and the Obama administration after voters passed ballot measures Tuesday legalizing adult recreational use of marijuana and defying federal law banning the substance.
The Justice Department reiterated in comments issued last week that its “enforcement of the Controlled Substances Act remains unchanged.”
“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,” a spokesperson for the Justice Department said in an email. “The Department of Justice is reviewing the ballot initiatives and we have no additional comment at this time.”
The United States Attorneys office of Western Washington and the Drug Enforcement Agency issued identical statements when asked for comment.
However, Democratic governors across the nation are telling the Obama administration to stay out of their business.
“It’s time for the Justice Department to recognize the sovereignty of the states,” Democratic California Gov. Jerry Brown said on CNN on Sunday. “I believe the president and the Department of Justice ought to respect the will of these separate states.”
The Obama administration has ramped up prosecution of dispensaries in the Golden State despite California voters passing a ballot initiative legalizing medical marijuana in 1996. Federal authorities have shut down more than 600 medical marijuana dispensaries in California since 2011 and have targeted dispensaries and grow operations in Oregon, Washington, and Colorado.
“We are capable of self-government,” Brown added. “We don’t need some federal gendarme to come and tell us what to do. I believe in comity toward the states, that’s a decent respect.”
Democratic Colorado Gov. John Hickenlooper also said his government intends to comply with the new law. He noted that there may be federal attempts to interfere with its implementation.
“The voters have spoken and we have to respect their will,” Hickenlooper said in a statement on Amendment 64. “This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or goldfish too quickly.”
Last Tuesday’s elections were a landmark victory for advocates of marijuana legalization. Washington and Colorado became the first states to legalize marijuana for adult recreational use rather than strictly medicinal purposes.
Fifty-five percent of Colorado voters voted for the amendment, making it more popular than President Obama. 1.29 million votes were cast in favor of Amendment 64; Obama only received 1.24 million votes.
The amendment legalizes possession of up to an ounce of marijuana for any purpose for those over 21 and also allows licensed stores to sell marijuana starting in 2014.
Massachusetts voters also passed a ballot initiative legalizing medical marijuana 63 percent to 37 percent.
The ballot measures are expected to force the Justice Department’s hand one way or the other, said Sabrina Fendrick of the National Organization for the Reform of Marijuana (NORML).
“The ball is in their court and they can either take action or leave it alone,” Fendrick said.
"For me, it's going to be live and let live. If people want to come to Colorado because pot is legal—and that's the sole reason—it's up to them," Aspen sheriff Joe DiSalvo told the Aspen Times. "I am not the lifestyle police."
However, former administration officials are doubtful that the new laws will withstand federal opposition.
"This is a symbolic victory for [legalization] advocates but it will be short-lived," Kevin Sabet, a former adviser to the Obama administration's drug czar, told reporters Wednesday.
"They are facing an uphill battle with implementing this in the face of … presidential opposition and in the face of federal enforcement opposition," Sabet said.
The federal government has two ways to fight the new state laws.
The first would be a lawsuit blocking the laws. The second would be simply ignoring them and continuing to prosecute sellers and buyers of marijuana under federal law.
“There’s definitely going to be some movement, but I’m not sure how aggressive it’s going to be,” said Morgan Fox, the communications manager of the Marijuana Policy Project, a pro-legalization group. “I don’t know if there’s the political capital there to overturn the will of the voters. That said, it’s possible the government could tie the states up in court.”
However, Fox said prosecutions would not necessarily come from a top-down directive. U.S. attorneys are given broad discretion to pursue issues as they please. San Diego U.S. Attorney Laura Duffy earlier this year threatened to prosecute local publications for running medical marijuana dispensary advertisements.
The Obama administration’s rhetoric on marijuana has been muddled and contradictory.
Obama said on the campaign trail, “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue.”
Previous Deputy Attorney General David Ogden in an October 2009 memo said U.S. attorneys “should not focus federal resources” on prosecuting those who are in “clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
Attorney General Eric Holder also signaled that the administration would respect state medical marijuana laws.
“For those organizations that are doing so sanctioned by state law and doing it in a way that is consistent with state law … given the limited resources that we have, that will not be an emphasis for this administration,” Holder said in 2009.
However, in a June 2011 memo, Deputy Attorney General James Cole said cultivators and sellers of medical marijuana were in clear violation of the Controlled Substances Act and open for prosecution.
“The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law,” Cole wrote.
Cole wrote that the new guidelines “are entirely consistent with the October 2009 memorandum.”