By Melissa Gelbart

During this year’s election, the state of Colorado became the first state to legalize marijuana for recreational use, and Washington state came in a close second. When the laws are certified, it will be legal for adults 21 years and older to possess up to an ounce of marijuana. Voters in Oregon voted against similar legislation. Massachusetts’s voters approved medical marijuana, and Arkansas simultaneously rejected a similar proposition.

Washington and Colorado now face major hurdles implementing the legalization laws.

Washington’s law, I-502, gives the state one year to create a licensing system for growers, processors and sellers, as well as resolve issues such as potency levels and prices. The Washington State Liquor Control Board has been assigned the task of creating and administering a marketplace. In Washington, users will have to buy their marijuana from state-licensed providers. When I-502 takes effect on December 6th, 2012, police will not longer be able to search a vehicle based on the smell of pot alone. However, the law does contain a driving-while-stoned provision, with a maximum legal limit for THC in the blood. The law requires all pot to have been grown and processed in the state of Washington. Washington’s legalization ballot intiative proposed a heavy tax for marijuana that made it attractive to citizens concerned about budget deficits. The initiative calls for a 25% tax rate imposed on the product three times: when the grower sells it to the processor, when the processor sells it to the retailer, and when the retailer sells it to the customer.

Regulating the marijuana industry could have tremendous benefits for states, including added tax revenue and increased job opportunities. Furthermore, states will save a considerable amount given the high number of people who are incarcerated each year for marijuana offenses and the high cost of housing prisoners, in addition to the cost of enforcing marijuana laws. If the legalization laws are a success in Colorado and Washington, it is safe to expect many similar proposals on the ballots in 2016; however, the future of legalization depends largely on whether the federal government will have a change of heart concerning “Mary Jane.”

The federal laws preempt states’ laws, and, under federal law, marijuana is designated as a Schedule I prohibited substance, much like heroin and cocaine. The federal government has cracked down on states like California and Montana in response to the legalization of medical marijuana. Yet, regardless of increased federal oversight, medical marijuana use has surged in the 16 states and the District of Columbia that have legalized its use. Since medical marijuana became legal in Colorado, marijuana dispensaries have exploded in number and more than 88,000 Colorado residents have medical marijuana cards. In July 2010, even the Department of Veterans Affairs announced that it would formally allow patients treated at its hospitals and clinics to use medical marijuana in states where it is legal. Although the medical marijuana industry is flourishing, the conflict between state and federal law on the issue obfuscate proper use and implementation.

In a recent press release, the Drug Enforcement Administration reiterated its stance that marijuana is an illegal drug and that possessing, using or selling it is a crime, stating “the Drug Enforcement Administration’s enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I control[ed] substance. The Department of Justice is reviewing the ballot initiatives.” The Colorado U.S. Attorney’s Office and the Washington State U.S Attorney’s Office released identical statements, saying that their position on marijuana as an illegal drug is unchanged. [] According to the Controlled Substances Act, persons who are in the business of cultivating, selling, or distributing marijuana, and those who knowingly facilitate such activities, are in violation of federal law regardless of state law.

All eyes are now on the federal government. If Obama had previously come down hard on marijuana, he would have risked alienating many young and democratic leaning voters in Washington, Colorado, and the other numerous states with medical marijuana use. However, now that the election is over, it will be interesting to see what direction the government takes under his lead. The U.S. Deputy Attorney General James Cole opposes legalization, and President Obama has said, “I don’t think that legalization of drugs is going to be the answer.” []

The Governor of Colorado, John Hickenlooper, also opposes legalization but wants to respect the will of the voters, “this is a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or goldfish too quickly.” []

Kevin Sabet, a former adviser to the Obama Administration, feels that this is a symbolic victory for legalization advocates, but will be short lived. He advises that these states face an uphill battle with implementation in the face of federal enforcement opposition.

Sabet said he expects the Obama administration to challenge aspects of state-level legalization measures in a federal lawsuit soon. Jeffrey Miron, a senior lecturer of economics at Harvard University and a senior fellow at the Cato Institute, where he has conducted economic studies on nationwide drug legalization, agrees: “[The feds] will do whatever they can to interfere with marijuana legalization in any state.” []

Because the use of marijuana is so common and widespread, there is a major need for its regulation.  The upside to this new industry can be potentially significant for states. The people of Washington and Colorado have already spoken, and the time has come for the federal government to get with the times.