Last week, voters in Colorado and Washington overturned 75 years of marijuana prohibition in historic decisions that will reverberate through American society and the world for weeks, months, and years to come. President Obama’s re-election may have consumed last week’s news cycle, but he returns to mostly the status quo in Washington, DC. The legalization of pot, on the other hand, is like two hydrogen bombs going off deep inside a fault line of America’s legal landscape: barely felt at the surface; yet capable of triggering a tectonic shift in policy. We phoned organizers of Washington’s Initiative 502 and Colorado’s Amendment 64 to walk us through the immediate effects.
What did Washington just pass?
According to New Approach Washington outreach director Tonia Winchester, Washingtonians passed an amendment to their state constitution. Starting December 6, it is no longer a crime for adults 21 and older to possess up to one ounce of marijuana for personal use. Smoking in public and in private non-smoking locations remains prohibited. A new marijuana DUI standard will operate like Washington’s alcohol DUI standard, with the limit set to five nanograms of active THC per milliliter of blood. No home-growing, however, is allowed.
Next year, licensed Washington farmers will be allowed to grow weed and sell it at pot stores operated by private Washington businesses and regulated by the state. Advertising and store locations are subject to restrictions to minimize exposure to those under 21.
What about the feds?
I-502 repeals some Washington state marijuana laws, but does not affect federal law. A federal agent could still arrest Washington residents for possessing or using pot in their homes. But, in practice, the feds are focused on people trafficking large amounts of drugs, and a DEA agent is unlikely to arrest grandma for smoking a joint.
Can the feds sue to stop the state licensing system? Doesn’t federal law trump state law?
It depends. Federal law preempts state law if there is a “positive conflict” between the two, meaning state law “requires” someone to break federal law. I-502 does not “require” anyone to do anything that violates federal law. It removes some state marijuana crimes, and calls for a statewide system to license the private industry.
Couldn’t the feds attack that regulatory system?
They could, but it’s unclear whether they would prevail. Winchester said she hopes they won’t. “We’re hopeful we can have a dialogue,” she said. “We’re very optimistic this can be a collaborative conversation.”
Why wouldn’t the feds just try to overturn Washington’s regulations?
If the feds succeed in dismantling the state’s regulatory structure, the feds would have to own the ensuing chaos. It would be pretty bad politics.
What about tourism?
As of December 6, all adults 21 and older will be allowed to possess up to an ounce of marijuana and smoke it. You can be from Washington, California, or Timbuktu — it doesn’t matter. But you probably will want to wait a year or two until some stores open.
What did Colorado just pass?
Amendment 64 campaign co-director Mason Tvert said state voters passed a constitutional amendment removing all legal penalties for personal possession of up to one ounce of marijuana, and for home-growing up to six marijuana plants in an enclosed, locked space, for adults 21 and older.
Amendment 64 directs the Colorado Department of Revenue to license private cannabis cultivators, distributors, stores, and testing facilities. The initiative does not change existing laws regarding driving under the influence of marijuana, nor does it change the ability of employers to fire stoners.
Can’t the feds sue to stop A64 from being implemented?
Like Washington, Colorado can’t be made to enforce federal drug law. The feds could try to dismantle the state’s regulatory structure, however. The feds could file suit and argue that federal law “preempts” such a system. It’s unclear who would win.
It should be noted that Colorado (and other states and cities) already license and tax pot under a medical marijuana system. The feds have not challenged it, Tvert said. His group hopes to avoid a suit through ongoing discussion with federal and state officials. “The federal government hasn’t interfered, they don’t have to interfere, and we hope they won’t interfere,” Tvert said.
Can I smoke a joint there now? What about tourism?
The measure becomes effective by proclamation of the governor upon official declaration of the vote. That should happen by January 1, Tvert said. Cannabis tourists might want to wait a couple years, though. Even if it’s legal to smoke, there’s nowhere to buy it without a medical marijuana card. Cards are for state residents only, and take a while to obtain.
What’s the timeline for this?
By July 1, 2013, the Department of Revenue must adopt regulations for implementing Amendment 64. By October 1, 2013, towns and cities must begin accepting store license applications. Licenses must be approved or rejected within ninety days. The legislature has until 2014 to pass laws governing the growth and sale of hemp.