Up until the passage of two initiatives Tuesday to legalize and regulate marijuana in Washington and Colorado, federal officials had remained quiet, declining to weigh in on the partial legalization of a product that is federally illegal.
The department’s enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiatives and have no additional comment at this time.
While this statement is mostly a punt that communicates little about what the federal government plans to do, it is definitively a milder message than Attorney General Eric Holder sent in 2010, when he warned prior to the failure of a similar California initiative that he “strongly opposed” the initiative and would “vigorously enforce” federal drug law against those in compliance with the state law.
Among the questions left unanswered by this statement are: Will the DOJ file a lawsuit challenging the laws in their entirety, as former Obama drug advisor Kevin Sabet has suggested? Will it take the stance the DOJ once took on medical marijuana that it would not target those in compliance with state law?
The DOJ’s position on medical marijuana enforcement has fluctuated, with messages coming out of House Judiciary Committee testimony and a 60 Minutes segment that conflict with a 2011 memo that suggested only individuals, and not dispensaries, would be exempt from prosecution. Meanwhile, the Department’s approach to enforcement at medical marijuana dispensaries in particular states has been increasingly aggressive. In California, the DOJ is continuing its case against the nation’s largest dispensary, Harborside Health Center, and recently took its crackdown to Los Angeles, where it filed complaints against three dispensaries and sent warning letters to 67 others.
It is hard to believe that the Department of Justice would take a softer approach to recreational marijuana than it has to medical marijuana, but it is possible that these laws and the public support they symbolize may prompt the DOJ to again reconsider its position. After all, as the DOJ has already learned from the growth of the medical marijuana industry in Colorado, enforcing federal drug law in a state with a burgeoning state-sanctioned industry is a whole different ballgame. What’s more, there are likely to be some changes of leadership in a second Obama administration that may well impact enforcement approaches. Attorney General Eric Holder announced Thursday that he is considering stepping down in Obama’s second term.