Colorado Governor John Hickenlooper today signed an executive order making Amendment 64 part of the Colorado constitution, effectively legalizing the possession, use and home growth of an ounce or less of marijuana under Colorado law.  He also created a task force to oversee specifics of implementing legalization.  In a statement issued after the signing, Gov. Hickenlooper said the task force will be responsible for, among other things, “work[ing] to reconcile Colorado and federal laws such that the new laws and regulations do not subject Colorado state and local governments and state and local government employees to prosecution by the federal government.”  That’s the rub, isn’t it? 

Gallup had a very interesting poll out the other day showing that the public favors allowing states to make their own marijuana laws free from federal interference.  The really interesting thing about this poll is the degree to which the federalism issue outpolled legalization with voters.  While those surveyed wanted states to be free to make their own laws by a 64-34% margin — pretty overwhelming!-  the same respondents actually very slightly opposed marijuana legalization by a 50-48% margin.  So people don’t like the feds telling the states what to do when it comes to drug laws, but that doesn’t necessarily translate into favoring legalization. Also interesting –this month’s Gallup result was different from the Gallup poll result in October, prior to the passage of legalization initiatives in Washington and Colorado, when those surveyed favored legalization by a margin of 50-46%.  So since election night, when two states actually went ahead and legalized, the percentage of the public favoring legalization slipped by two points, while the percentage opposing rose by four points.

But federalism remains wildly popular.  The sticking point, of course, is that the states have no power to tell the federal government to back off.  Only the federal government can make federal drug policy, according to the Supreme Court.  While DOJ has not been entirely clear about its intentions, reports indicate there is still a very real possibility that the federal government will block implementation of the Colorado and Washington laws. 

 Of course, there are alternate pathways to allowing states to legalize regardless of what DOJ does, pathways that go through the other two branches of the federal government.  They don’t look any more likely to succeed, but still, it’s worth a brief discussion.  The cleanest pathway would be for Congress to change federal law, perhaps by passing a version of H.R. 2306, known as the “Ending Federal Marihuana (the spelling favored by the CSA) Act of 2011,” which was introduced last year by Barney Frank and Ron Paul but died a quick (and presumably painless) death in committee.  Barring a massive shift in opinion within Congress, however, this just is not going to happen anytime soon.  Another pathway is through the federal courts.  Legalization advocates could always use the mechanism of 21 U.S.C. 877 to get into court, as they already have with medical marijuana in ASA v. DEA.  Whether such a suit would be likely to achieve anything given the definitive ruling in Raich will be the subject of a later post.