Constitution Daily

Smart conversation from the National Constitution Center

Legal marijuana remains hazy in Colorado, Washington

April 3, 2013 by NCC Staff


It’s been months since Washington and Colorado legalized marijuana and challenged federal laws on controlled substances. And without federal action, the two states remain stuck in a rut.

782px-Medicinal_MarijuanaIn November 2012, voters in the two states approved legalization referendums, despite the current federal statutes on controlled substances that make medical and recreational marijuana a Schedule 1 controlled substance nationally.

Washington Governor Jay Inslee and Colorado Governor John Hickenlooper have talked with U.S. Attorney General Eric Holder and Justice Department officials about their states’ plans to enact voter-approved marijuana laws.

About one month ago, Holder told a Senate hearing he expected a Justice Department ruling to be made on the matter.

“We’ve had good communication. … I expect that we will have an ability to announce what our policy is going to be relatively soon,” Holder said.

Since his appearance on March 6 in front of a Senate committee, Holder has remained silent, following his department’s policy of saying little or nothing about the state laws in Washington and Colorado.

Inslee and Hickenlooper have been pressing the Justice Department to file a lawsuit or to define which parts of the federal laws they plan to enforce, since both states need to spend considerable money building a system to control the manufacturing, distribution, sales, and taxation of marijuana.

Voters in the two states chose to legalize marijuana for recreational use following 18 states that approved it for medical use. Neither Colorado nor Washington’s law allows public marijuana use, either through smoking or internal consumption.

Legally, the states will have a tough road in court if Holder decides to sue to overturn the laws.

The Supremacy Clause of the U.S. Constitution., in Article VI, Clause 2, states that in a conflict of state and federal laws, the federal law is the supreme law of the land:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

States can contest the constitutionality of a federal law through the court system, and hope that a law is overturned. But they can’t decide to ignore a federal law—at least in theory.

In addition, 18 states have made medical marijuana legal, and any decision from Holder on the enforcement of federal laws in Washington and Colorado could affect the status of medical marijuana in other states.

The attorney general has targeted medical marijuana dispensaries in recent years, but not smokers.

In Colorado, legal marijuana stores aren’t scheduled to be open until 2014 at the earliest. And in Washington, the state’s Liquor Control Board has until December 2013 to set up its distribution system.

Washington hired a marijuana consultant, Dr. Mark Kleiman, in March to help oversee its development of a marijuana distribution system. Governor Inslee also wants the board to crack down on bars that let patron’s smoke on the premises.

And then there’s the issue of taxing pot in Washington. Some lawmakers want to tax the brand names and trademarks that will appear on packages of marijuana. The state's excise tax could be steep.

In Colorado, as many as four taxes could be levied on marijuana bought legally: local sales tax, state sales tax, an excise tax, and a marijuana sales tax.

Those taxes would need to be approved in another voter referendum in November 2013.

All these efforts in Washington and Colorado will involve a lot of work in state legislatures, which could all be wiped out or put on hold if the Justice Department sues the two states.

In the end, the Justice Department could just wait to see what happens as the two states try to work out a system.

Erwin Chemerinsky and Allen Hopper, writing in a Los Angeles Times opinion piece, state the argument that states can serve as an experimental lab when it comes to social and legal policies.

“Beyond the legal arguments, there are policy reasons for the federal government to not interfere with the Colorado and Washington laws. An important feature of federalism is that states are empowered to serve as laboratories for experimentation with social policies,” they say.

“As the nation embarks on perhaps the most significant public debate about drug policy since President Richard Nixon declared the war on drugs, Washington and Colorado’s experiment should be allowed to go forward. The country can then assess whether it succeeded or failed.”

Recent Constitution Daily Stories

Stephen Colbert makes fun of Sanford in advance of election

Can you identify the presidents on U.S. coins?

Constitution Check: Why would a terrorism suspect be given Miranda warnings?

Sign up for our email newsletter