This election was historic in a lot of ways, but the one that matters most to us here at NarcoLaw is this: Colorado and Washington legalized recreational use of marijuana by ballot initiative yesterday.  (Oregon voters rejected a similar measure).  And when I say legalize, I actually mean legalize — not depenalize, not decriminalize.  No baby steps for these two states.  (See the text of their ballot initiatives here and here).  By going as far as they did, voters in Colorado and Washington have set themselves on a collision course with the Department of Justice and the Obama Administration, and my prediction is that they will ultimately lose this battle.  

I’m hardly going out on a limb here.  Anybody who’s been following the medical marijuana debate will presumably agree with this prediction.  Colorado and Washington may have legalized marijuana, but they did not write the Supremacy Clause out of the Constitution or overrule Gonzales v. Raich.  The Commerce Clause purists may be on the march after Nat’l Fed. of Ind. Business v. Sebelius, but nothing in that opinion calls Raich’s basic holding into question or even opens the door a tiny crack.  Hydroponic growing is definitely an activity, and a highly commercial one at that.

So you may now be free to smoke a joint openly in downtown Boulder as far as the locals are concerned, but sorry, the DEA can still arrest you.  The CSA still lists marijuana as a Schedule I controlled substance, and our international treaty obligations (to the extent we pay attention to those) still require us to maintain cannabis prohibition in some form.  Will the DEA target individual users?  My guess is that this won’t be worth the trouble.  But they will surely go after growers and distributors as they did in California when the medical marijuana law became a poor cover for a full-blown recreational use industry.  

Stay tuned for a complete analysis of the provisions of the Colorado and Washington ballot initiatives as well as more on the federalism angle to legalization.  Fun times!