Marijuana Legalization: Why Proponents Want a Showdown With the Feds


When federal agents raided four medical marijuana dispensaries in Washington State on July 24, they signaled the start of a larger showdown between federal and state governments over marijuana legalization.

And that's exactly what marijuana legalization proponents want to happen.

Washington State officials have been on the front line of this fight since voters approved Initiative 502 to legalize marijuana in November 2012. These officials now face the challenge of implementing a state law that directly and deliberately contradicts federal law.

It's "going to set up a showdown with the federal government, there's no question," said former U.S. Attorney John McKay, a Bush appointee and a leading advocate of I-502. McKay's involvement is just one example of the broad support marijuana legalization enjoyed across the political spectrum in Washington last fall.

Dominic Holden, a longtime proponent of marijuana decriminalization, former director of Seattle Hempfest and current news editor of Seattle's alternative weekly The Strangerechoed McKay's comments:

"The US Department of Justice can — and probably will, if I-502 passes — attempt to challenge Washington's proposal to regulate the pot industry. They will likely challenge it in U.S. District Court, and the case of United States v. State of Washington will be appealed and appealed until it reaches the Supreme Court. Guess what? That's the fucking point. Let's have a national discussion about pot legalization, and let's have it be a discussion about a well-thought-out model for regulation that emulates the rigors of alcohol regulations. That battle is strategic, it's overdue, and it's the goal."

Proponents of legalization have found that the path to victory lies through state government. On August 1, Illinois became the 20th state to legalize medical marijuana.

Medical marijuana has been legal in Washington State since 1998. I-502 legalizes recreational marijuana use and regulates it like alcohol consumption.

Along the lines of open-container laws prohibiting alcohol consumption in public, I-502 does not allow marijuana to be used in public. It also sets a new threshold for driving under the influence of marijuana, limiting the active THC blood concentration similar to DUI laws. Under I-502, the state is charged with licensing and regulating marijuana distribution.

I-502 will be implemented in stages. On December 1, 2012, the laws regarding recreational marijuana use and driving under the influence of marijuana went into effect. Washington State officials have until December 1, 2013 to set up a state-regulated system of marijuana distribution. Officials across the state have indicated that they plan to follow state law and not federal law when it comes to marijuana.

Federal officials have publicly opposed the marijuana legalization laws passed by both Colorado and Washington State last November.

The Director of the Office of National Drug Control Policy Gil Kerlikowske said, "We're not going to solve it by drug legalization, and we're certainly not in my career going to arrest our way out of this problem, either, and these two extreme approaches really aren't guided by the experience, the compassion or the knowledge that's needed."

Prior to being named the nation's "drug czar," Kerlikowske served as the Seattle Police Chief. While Kerlikowske's performance as Police Chief was not without its problems, Kerlikowske was generally praised for his handling of drug policy. Under his tenure, the Seattle Police Department treated drug use as a public health issue.

In an interview, President Obama said, "We've got bigger fish to fry. It would not make sense for us to see a top priority as going after recreational users in states that have determined that it's legal."

Obama's comments made it clear that the federal government did not plan to indict recreational users but he did leave the door open for the prosecution of distributors.

Kerlikowske confirms that the federal government intends to focus on distributors, clarifying, "You'll continue to see enforcement against distributors and large-scale growers as the Justice Department has outlined. They will use their limited resources on those groups and not on going after individual users."

However, it appears that the federal government is reluctant to actively confront the states where marijuana is legal. Legalization opponents have been aggressively lobbying the feds to sue Washington and Colorado to prevent implementation of the law, which so far has not happened.

Washington governor Jay Inslee and Seattle City Attorney Pete Holmes have both indicated that based on private conversations with federal officials, the feds are taking a "wait and see" approach. The level of federal interference may depend on whether Washington State successfully regulates marijuana use.

The recent federal raid is likely intended to serve as a reminder to Washington State officials that officials in the other Washington are paying close attention to the I-502 implementation process. The federal government may not be ready to change its mind about marijuana legalization any time soon, but it's clear that states will be increasingly unwilling to wait for them.

Editor's Note: A previous version of this article erroneously stated that medical marijuana had been legalized in Washington State in 2011.