Lost in the impasse over the fiscal cliff is the standoff between the states of Washington and Colorado and the Obama administration over marijuana laws, which may get a push from Colorado's early decision to legalize pot.
In another time, and in the absence of the financial debate in Washington, D.C., the fight over marijuana laws would be front-page news.
Colorado quietly made the private consumption of marijuana legal on Monday, as Governor John Hickenlooper officially added the law to his state’s constitution, and announced the move on Twitter and in an email blast. Hickenlooper had until January 5, 2013 to make the decision.
Also quietly, pressure seems to be growing on President Barack Obama’s Justice Department to file a lawsuit to block the controversial voter-approved laws, which allow citizens to use marijuana recreationally under controlled circumstances.
Ultimately, the issue could be solved constitutionally by national lawmakers or the Supreme Court. The ability of states to decide their own laws, even ones that conflict with federal statutes, has been a constant sore point since the Constitutional Convention in Philadelphia in 1787.
For now, leaders in Colorado and Washington want to know if Attorney General Eric Holder will move in court to sue them. State leaders need to approve rules about how their marijuana policies will address the sale, manufacture, and transportation of marijuana, and how local law enforcement officers will issue fines, bust illegal growers, and train their staff on the problems.
The two states face significant investments in building a legalized marijuana infrastructure for recreational consumers, and the concerns in Colorado and Washington are that the Obama administration won’t act until after that money is spent.
A spokesperson for Washington Governor Christine Gregoire told the newspaper The Hill this week that the two states need an answer.
“We don’t want to get so far down the road and then have the process stopped,” said Cory Curtis, a spokesman for Governor Gregoire.
Last week, Washington State Liquor Control Board spokesman Brian Smith that his state needs a decision from the federal government as soon as possible.
"We don't want to go and spend serious resources only to have it stopped by the federal government," Smith said. "It would sure help Washington state if they weighed in and made clear their expectations."
The new law in Washington state allows people to smoke marijuana in private, but not in public. They can’t grow their own plants, but they can buy marijuana at state-licensed stores. The marijuana in those stores must come from state-licensed producers and processors.
Adults can possess small amounts of weed in Washington, but it must come from a state-licensed and controlled source, which insures taxes are collected. In short: the system mirrors Washington’s alcohol-sales system.
More than half the revenue from marijuana in Washington will go into the state’s health-care system.
Link: Washington’s laws
Colorado’s laws are somewhat different. People can grow up the six plants at home for personal consumption. They can give up to one ounce of marijuana as a gift to another adult. And they can transport their homegrown marijuana.
The rest is similar to Washington: no public pot puffing and the public sales of marijuana are licensed, controlled, and taxed.
And in Colorado, the first chunk of tax revenues from marijuana sales will go into a fund to build public schools.
Link: Colorado’s laws
In both states, adults who are 21 years old can consumer marijuana; driving high on marijuana beyond a defined limit is illegal; and local counties and cities have the right to determine if they want to have public sales of pot—much like Blue Laws that allow towns and counties to remain “dry” when it comes to alcohol.
So far, the only warning shot from the Obama administration is a friendly reminder that marijuana is a Schedule 1 controlled substance, like heroin, according to federal law.
Here is the mandate issued last week, when the first part of Washington state’s law went into effect, in the form of a statement for a U.S. attorney:
“The Department of Justice is reviewing the legalization initiatives recently passed in Colorado and Washington State. The Department’s responsibility to enforce the Controlled Substances Act remains unchanged. Neither States nor the Executive branch can nullify a statute passed by Congress. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. Regardless of any changes in state law, including the change that will go into effect on December 6th in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law. Members of the public are also advised to remember that it remains against federal law to bring any amount of marijuana onto federal property, including all federal buildings, national parks and forests, military installations, and courthouses.”
Currently, public opinion is growing in support of the laws in Colorado and Washington. A recent Gallup Poll says that about 64 percent of those polled nationally believe the federal government shouldn’t overrule the new laws in Colorado and Washington. People were evenly split about having legal marijuana in general.
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So while many people don’t agree with the legalization of marijuana, even more people think the federal government is overstepping its constitutional mandate by getting involved in Colorado and Washington.
And the latest twists in the marijuana saga are signs from within Congress that lawmakers could get involved in the fight down the road.
While there’s a lack of bipartisan spirit in the fiscal cliff talks, Republicans and Democrats are actually discussing a legislative solution to the marijuana standoff if the Obama administration doesn’t act.
Representative Diana DeGette (D-Colorado) has introduced a House bill that would allow the state laws about marijuana to pre-empt the federal statute.
“I just think it’s important to have this conversation about what’s the appropriate role of the federal government and the state government,” she said in an article from the influential publication Roll Call.
Republicans Mike Coffman and Ron Paul are co-sponsors of the bill, and Coffman signed on even though he’s personally opposed to marijuana use.
"I strongly oppose the legalization of marijuana, but I also have an obligation to respect the will of the voters given the passage of this initiative, and so I feel obligated to support this legislation," Coffman said in November.
Scott Bomboy is the editor-in-chief of the National Constitution Center.