The Obama administration is remaining noncommittal on legal marijuana in Colorado and Washington state. But it seems to be sending mixed signals with two recent statements.
The two states legalized recreational marijuana use, under controlled circumstances, in November voter referendums, and the governors of Colorado and Washington have signed the acts into law.
President Barack Obama and his administration have released just a few statements since then in the debate over a central constitutional issue: Do state governments or the federal government have the right to make marijuana laws?
Issues of states’ rights and federalism date back to the Constitutional Convention in 1787, and in this current case, the Obama administration is signaling that Congress—and not the president—needs to resolve the conflict.
What's less clear is the administration's internal stance on the issue of legalization.
On Tuesday, Gil Kerlikowske, the director of the Office of National Drug Control Policy, responded to several citizen petitions to the White House with a brief statement and a reference to the definitive policy statement from President Obama—his December television interview with Barbara Walters.
“It is clear that we're in the midst of a serious national conversation about marijuana,” Kerlikowske said. He then referenced recent interview with Walters in which President Obama addressed the legalization of marijuana.
A day earlier, Kerlikowske, the top federal drug enforcement official, told an audience in San Francisco that he didn’t have influence with the Justice Department, but he had clear opinions on the issue of legalization in Colorado and Washington.
The San Francisco Examiner quoted Kerlikowske as saying, "The Obama administration strongly believes it is a false choice."
In his interview with Walters, President Obama said in December that “it does not make sense from a prioritization point of view for us to focus on recreational drug users in a state that has already said that under state law that's legal.”
And the official White House statement from Kerlikowske on Tuesday highlighted the following quote from the Walters interview: “This is a tough problem because Congress has not yet changed the law. I head up the executive branch; we're supposed to be carrying out laws. And so what we're going to need to have is a conversation about how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal.”
Marijuana supporters already pointed out in December that the president has the power under the Controlled Substance Act to change the law, and remove pot from the Schedule 1 list of drugs, without consulting Congress.
Under the Federal Code, under Section 811 of Title 21, the U.S. attorney general, after a lengthy petition and consultation process with the Secretary of Health and Human Services, can move a drug to a less-restrictive schedule. It would need to approve a review petition first.
The most recent petition was accepted in 2003 by the Bush administration for a preliminary review and is the current subject of a legal battle after it was denied by the Obama administration in 2009.
As of December, there were some members of Congress who were supportive of a legislative solution.
Representative Diana DeGette (D-Colorado) has introduced a House bill that would allow the state laws about marijuana to pre-empt the federal statute.
Recent Constitution Daily Stories
Obama says he won’t prosecute pot smokers in two states Pot luck? States push Obama for legal marijuana ruling More states ponder legal marijuana as feds loom
Representatives Barney Frank and Ron Paul had also introduced a similar bill in 2011.
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.
Leaders in Washington and Colorado have also pressed the Obama administration for a decision. 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.
What also complicates matters has been the Obama administration’s stance on medical marijuana, which has included aggressive raids on medical marijuana dispensaries within states that legalized it.
And on Monday, a Southern California man was sentenced to 10 years in federal prison for running what prosecutors claimed was an illegal medical marijuana business for profit. The state law says the medical marijuana can be grown in nonprofit collectives.
One recent proponent of legalized marijuana in California is the state’s lieutenant governor and potential gubernatorial candidate, Gavin Newsom. (The current governor, Jerry Brown, spoke out against legalization during his campaign in 2010, but said in November 2012 the federal government should respect the will of states that have chosen legalization.)
"These laws just don't make sense anymore. It's time for politicians to come out of the closet on this,” he told The New York Times in December.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
Editor's note: Gavin Newsome will be at a free event hosted at the Center on February 3. For more information, go to constitutioncenter.org/calendar/gavin-newsom-government-in-the-digital-age