Marijuana Legalization: Could Efforts Go Up in Smoke?

By Derek Willie

Derek Willie is a rising freshman at the University of Pennsylvania. 
 
“If you’re getting high in Colorado today, enjoy it. As of January 2017, I will enforce the federal laws.”

So pledged New Jersey Governor and Republican presidential hopeful Chris Christie as he delivered a blunt reproach of Colorado’s legalization of recreational marijuana in his typically straightforward manner. [1] The prospects of Christie winning the presidency in November 2016 are slim, yet his harsh edict, albeit premature, is a sobering reminder that as the Obama presidency ends, so does his administration’s treatment of marijuana as a mostly benign “vice.” [2]

After Colorado voted via ballot initiative to legalize marijuana for recreational use and the state’s plan was implemented in 2013, Deputy Attorney General James Cole authored a related memorandum designated for all U.S. Attorneys. [3] In the memo, Cole established eight stipulations by which jurisdictions legalizing recreational use needed to abide. Among the eight were demands that such jurisdictions prevent “the distribution of marijuana to minors,” prohibit “drugged driving,” and restrict interstate trafficking. If the states complied, Cole concluded, “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.” If they didn’t, the federal government would “seek to challenge the regulatory structure” of the offending jurisdiction and “to bring individual enforcement actions, including criminal prosecutions, focused on those harms.” [4] So far, the federal government has not perceived any substantial infractions of their stipulations, as evidenced by the absence of the threatened criminal prosecutions. 

Although Christie’s plan is certainly intrepid, it would fall within his legal authority as president. A hypothetical Christie administration could elect to enforce the Controlled Substances Act that labels marijuana a Schedule I narcotic, a title questionably shared with heroin and other opiates. [5] If Christie chooses to execute the plan, the Department of Justice could feasibly order U.S. Attorneys in Colorado, Washington, Oregon, and Alaska to prosecute marijuana vendors, growers and distributors in those states. Yet, while Christie’s actions would be statutorily justified, they would undoubtedly be politically unpopular, even among Republicans. According to a Pew poll from April, 59% oppose enforcement of the Controlled Substances Act in states where marijuana has been legalized, including 54% of Republicans. [6]

While Republicans are almost entirely unified in opposing outright recreational legalization, the disagreement between Christie and a majority of Republicans over federal enforcement represents a significant dichotomy in conservative thought. While Christie’s view seems to be more anti-marijuana, it still emphasizes the federal government’s legal supremacy over states, a highly unattractive concept to small-government conservatives. While this alleged supremacy is constitutionally accepted, conservatives continuously find themselves opposed to any federal attempt to limit a state’s authority to write its own regulations. Therefore, they often enforce their own statutes, even those blatantly contradictory to federal law. Such opposition is perhaps best evinced by the dissenting views of Christie’s primary opponents. Former Hewlett-Packard CEO and fellow Republican presidential candidate Carly Fiorina affirmed, “Colorado voters made a choice. I don’t support their choice, but I do support their right to make that choice.” [7] Republican candidates Jeb Bush, Scott Walker, Rand Paul, and Ted Cruz agreed. [8] Thus, a Republican victory in 2016 doesn’t necessarily precipitate an end to legal marijuana in the four states where it currently exists. 

Still, the debate on federal marijuana policy is far from over. Given the issue’s growing traction and Republican support, and given more upcoming initiatives on state ballots in 2016, a national showdown over marijuana policy looms. While Christie and his allies may take solace in the persistence of the bygone Controlled Substances Act, the changing national opinion portends defeat when the thick cloud of smoke finally does clear. 



[1] Dopp, Terrence. "Smoke That Pot Now, Chris Christie Tells Users in States That Allow It." Bloomberg.com. July 28, 2015. Accessed August 11, 2015. http://www.bloomberg.com/politics/articles/2015-07-28/smoke-that-pot-now-christie-tells-users-in-states-that-allow-it. 
[2] Stableford, Dylan. "Where the 2016 Presidential Candidates Stand on Marijuana." Yahoo Politics. April 20, 2015. Accessed August 11, 2015. https://www.yahoo.com/politics/where-the-2016-presidential-candidates-stand-on-116920750826.html. 
[3] Ingold, John. "Federal Government Won't Block Colorado Marijuana Legalization." - The Denver Post. August 29, 2013. Accessed August 11, 2015. http://www.denverpost.com/breakingnews/ci_23973568/federal-government-wont-block-colorado-marijuana-legalization. 
[4] Cole, James. "Guidance Regarding Marijuana Enforcement." Office of the Deputy Attorney General. August 29, 2013. Accessed August 11, 2015. http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf. [5] "Controlled Substances Act." Regulatory Information. Accessed August 11, 2015.http://www.fda.gov/regulatoryinformation/legislation/ucm148726.htm. 
[6] Berenson, Tessa. "How Christie's Pot Stance Could Affect Him in Key States." Time. July 29, 2015. Accessed August 11, 2015. http://time.com/3976853/marijuana-chris-christie-colorado/. 
7] Ibid.
[8] Stableford, Dylan. "Where the 2016 Presidential Candidates Stand on Marijuana." Yahoo Politics. April 20, 2015. Accessed August 11, 2015. https://www.yahoo.com/politics/where-the-2016-presidential-candidates-stand-on-116920750826.html.

Photo Credit: Flickr User Chris Phan

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