December 07, 2012 10:01 PM UTC

Feds To Sue To Stop Amendment 64?

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• by: Colorado Pols

A New York Times story today is making supporters of the recently-passed Amendment 64, the initiative legalizing possession of small amounts of marijuana in Colorado, freshly nervous:

Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.

Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.

Marijuana use in both states continues to be illegal under the federal Controlled Substances Act. One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law. Should the Justice Department prevail, it would raise the possibility of striking down the entire initiatives on the theory that voters would not have approved legalizing the drug without tight regulations and licensing similar to controls on hard alcohol…

This story doesn’t say that the Obama administration has made a decision to sue to stop Amendment 64–it seems to be more about weighing options, and heavy lobbying from law enforcement interests no doubt happy to encourage the prospect of a crackdown. On the other hand, as this story explains well, Obama faces political problems from such a crackdown, since legalization is most popular among liberal base Democrats.

Despite the consternation this story is stoking among legalization supporters, we would advise patience–this article describes meetings that one should fully expect are taking place, since understanding the range of options is the Justice Department’s job. It doesn’t necessarily mean the will of Colorado and Washington voters is about to be thwarted from above, or that the provisions regarding personal possession versus commercial regulation won’t be dealt with separately. Amendment 64 was written to be “severable,” making it harder (at least in theory) to invalidate the entire amendment if one section is struck down.