The national debate over legalized marijuana will come into new focus in early November, as two states and the District of Columbia will let voters decide on legalization measures similar to those approved in Colorado and Washington state.
Back in November 2012, Colorado and Washington state allowed recreational marijuana sales and use on a limited scale. During 2014, sales began in the two states after officials approved a tax and distribution infrastructure.
One wild card has been the stance of the federal government on the issue, since the state measures openly conflict with federal laws.
As of today, the Executive Branch’s Justice Department and Congress are steering clear of the marijuana legalization when it comes to state referendums. (A voter measure in the District of Columbia could be another matter entirely.)
Marijuana remains illegal under the federal Controlled Substances Act as a Schedule 1 substance. But in August 2013, Attorney General Eric Holder announced that the Justice Department wouldn’t criminally prosecute recreational marijuana users and state-approved growers and vendors in Colorado and Washington.
In February 2014, the Treasury Department issued rules to make it easier for banks to do business with legal marijuana dispensers. The Justice Department also directed U.S. attorneys not to pursue banks that do business with legal marijuana dispensers as long as the dealers agreed to Holder’s August 2013 guidelines.
And then there is the role of Congress in the legal marijuana controversy. It is unlikely to act in the short term to change the Controlled Substances Act, but it could act in a different way if voters in the District of Columbia approve recreational marijuana use.
The District of Columbia was created by the Founding Fathers from land owned by the states of Maryland and Virginia, with the intention of setting up a safe, secure federal district. However, the Founders were very clear to specify that the District of Columbia wasn’t a state, and its citizens had limited rights.
Article I, Section 8 of the Constitution gave Congress the power to create a federal district to “become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings.”
The District of Columbia passed a medical marijuana law in 2010 that was implemented without congressional objections. But a law passed earlier this year over the definite objections of some members of Congress decriminalized marijuana possession in the District.
The November 4 ballot measure allows for possession of limited amounts of marijuana for personal use, but not for the legalized sale of marijuana in the District.
There is speculation that if voters in the District legalize recreational marijuana, a potential Republican-controlled Congress taking office in January 2015 would use the power of a joint Congressional resolution to overturn the law.
The clearance of the marijuana referendums in Alaska and Oregon will be in the hands of local voters, and not Congress.
In Alaska, voters will decide if adults can possess up to one ounce of marijuana and maintain six plants. The measure would legalize production and sales, under the control of a state board, and marijuana would be taxed.
The Oregon proposal would allow adults to possess much more marijuana legally: up to eight ounces and four plants. Production and sales would be regulated by the Oregon Liquor Control Commission. And marijuana would be taxed.
Recent polls indicate the Alaska and Oregon referendums face considerable challenges on Election Day. However, a current Washington Post poll shows strong support for legalization in the District of Columbia.
Scott Bomboy is the editor in chief of the National Constitution Center.
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