Will Obama Let Washington and Colorado Keep Their Legal Pot?

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Many are pessimistic. But here's the case for optimism.

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(Reuters)

The marijuana reform movement made history this week, when voters in Colorado and Washington passed ballot initiatives legalizing the possession and sale of cannabis for purely recreational use. As our newly re-elected vice president might put it, this was a big f***ing deal in the world of drug policy. The new laws would treat marijuana much like alcohol and tobacco, setting the stage for a large scale, tightly regulated, and generously taxed commercial industry worth some untold millions of dollars. Simply put, these would be the most lax marijuana laws in the world -- smack dab in the middle of the country that invented the modern drug war. 

The big question now is: Will Obama let it happen?

OBAMA AND POT: A COMPLICATED RELATIONSHIP

While our president may be famous for saying he inhaled as a teenager ("because that was the point") marijuana is still very much banned under federal law. It's designated as a Schedule I drug under the Controlled Substances Act of 1970, just like other oh-so-not-legal drugs as LSD and heroin. And after essentially promising to defer to state law on medical marijuana early in the Obama administration, the Justice Department has, by some accounts, lowered the boom. According to Americans for Safe Access, the Drug Enforcement Administration has raided at least 200 cannabis dispensaries since 2009 and prosecutors have brought more than 60 indictments against medical marijuana providers. 

"There's no question that Obama's the worst president on medical marijuana," Rob Kampia, executive director of the Marijuana Policy Project, told Rolling Stone earlier this year. "He's gone from first to worst."

Some believe Obama's tough-on-pot stance suggests the feds might stop Washington and Colorado from setting up legal sales. After all, the initiatives don't even offer any pretense about medicating cancer. They simply make it legal to buy pot from a licensed distributor, then light up.

"Once these states actually try to implement these laws, we will see an effort by the feds to shut it down," Kevin Sabet, a former senior drug policy adviser to the president, told NBC News. "We can only guess now what exactly that would look like. But the recent U.S. attorney actions against medical marijuana portends an aggressive effort to stop state-sponsored growing and selling at the outset."

NO 'MAJOR CRACKDOWN'

Perhaps unsurprisingly, the backers of the Washington and Colorado initiatives are more optimistic. Their message, which I heard versions of in three interviews, boiled down to this: There hasn't actually been a national crackdown on medical marijuana, and with the right steps, there might not be a crackdown on commercial marijuana, either. 

In this telling, the recent flurry of raids and prosecutions against cannabis providers is not a sign that the administration intends to smother the medical marijuana industry in its cradle. Instead, it's been a response to the rapid growth of dispensaries in states like California, where ambiguous weed law leads to abuses.

"The federal government could go in and arrest everybody and indict everybody for distributing marijuana," said Alison Holcomb, the campaign director for New Approach Washington, which steered its state's legalization initiative. "They're not doing that."  

THE DIFFERENCE BETWEEN CALIFORNIA AND COLORADO

On paper at least, there have been two major turning points in the Obama administration's medical marijuana policy. In October of 2009, Deputy Attorney General James Ogden issued a memo stating that prosecutors should not spend time and resources hunting after medical marijuana patients or their "caregivers," as long as they stayed "in clear and unambiguous compliance with existing state laws." For growers and dispensaries, this was seen as a green light to do business.

Even after the Ogden memo, there were still dozens of raids in Colorado, California, Michigan, Montana, and Nevada. Federal prosecutors sent letters to the governors of New Jersey and Washington advising them that state employees could end up in legal trouble just for giving licenses to medical marijuana businesses. 

But the big pivot, the one that set the pro-pot community on edge, didn't come until June 2011, when Justice released a new memo that narrowed the definition of "caregiver." The new definition only applied to individuals, and excluded "commercial operations cultivating, selling or distributing marijuana." The Huffington Post's Ryan Grimm called it a "warning shot to medical marijuana shops," and the following months seemed to prove him right. The raids intensified, and other agencies, including the IRS, jumped into the fray

The federal squeeze has mostly focused on California, whose medical marijuana statute is so vague that prosecutors have much more leeway to crack down on providers under the pretense that they're breaking state and federal law. In Colorado, the law is clearer and the crackdowns are far fewer. Colorado has more medical pot dispensaries than Starbucks locations, but the most the U.S. Attorney's Office has done is to ask 60 to move farther away from schools. "States that had the most well-developed, politically grounded, statewide regulation of marijuana thrived the best," Ethan Nadelmann, executive director of the Drug Policy Alliance, said.*

THE ROAD TO LEGAL MARIJUANA

The hope is that, if Washington and Colorado set up smart laws with well defined bounds, federal prosecutors will decide to leave legal recreational marijuana alone, just like they mostly have with medical marijuana. Will that theory hold up? We'll find out in the coming year or so, as state regulators figure out their game plan. But the good news for pot fans is this: In 2010 Attorney General Eric Holder officially opposed California's initiative to legalize recreational marijuana. This time around, he was silent.

Then again, it also happened to be a presidential election year, and Colorado was a swing state. Of course Obama wasn't going to intervene. Now that he's been reelected, and two states want to adopt drug laws more liberal than the Netherlands, the president might not be so mellow. But Colorado and Washington can hope.

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*In another interview, Brian Vicente, an attorney and co-director of Colorado's Campaign to Regulate Marijuana Like Alcohol, expressed a similar sentiment: "That's the one thing that sort of differentiates Colorado -- we've had a transparent state regulatory infrastructure for several years. We believe that because of those state controls, the DEA has been much more hands off."

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Jordan Weissmann is a senior associate editor at The Atlantic.

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