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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.

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.

Some law enforcement officials, alarmed at the prospect that marijuana users in both states could get used to flouting federal law openly, are said to be pushing for a stern response. But such a response would raise political complications for President Obama because marijuana legalization is popular among liberal Democrats who just turned out to re-elect him.

http://www.nytimes.com/...

I understand the implications of allowing state laws that conflict with federal statutes to remain in effect; it brings to mind images of nullification and right-wing governors and legislatures opting their states out of the ACA and Social Security. That being said, there is no reason why the recently passed marijuana initiatives in Washington and Colorado should be interfered with by the federal government, as there is a very easy solution to any preemption quandaries raised by those new voter-approved laws: the federal government can exercise common sense, reasoned discretion, and a context-specific evaluation of state laws which conflict with federal statutes.

Yes, I can hear you saying "who decides what is 'common sense' and 'reasonable?'" In this case, both political factions would ostensibly be on the common sense side: the right would see a state being allowed to make its own decisions, and the left (and some portion of the right) would see an expansion of personal/individual liberty (and not the "freedom to die from lack of healthcare" sort of individual liberty so favored by the right). Both sides would come away with a "win."

Let me close on a more ominous note: despite the clear victory of these provisions - both in states that President Obama won - it seems clear that the Obama administration is poised to take some sort of legal action against the will of the people. This would be a disastrous mistake on many levels:

1) it would represent a continuation of the completely failed war on marijuana policy at a time when the public is clearly beginning to turn away from the disastrous methods of the war on drugs (which has really been a war on citizens, waged by their own government).

2) it would represent a serious blot on President Obama's legacy - leading the fight against personal liberty in defense of a prohibitionist policy that is destined for the dustbin, alongside alcohol prohibition. Obama would be placing his name next to the fanatics of the early twentieth century who forced Prohibition on this nation, as well as Richard Nixon. This is not a place President Obama should be.

3) it would represent a political disaster for both the president and the long-term success of the Democratic Party. As mentioned before, and as we all know, the president carried both Colorado and Washington this year. One would imagine that a healthy amount of the president's support came from young and "youngish" voters in both of those states, perhaps enough to push the president over the top in Colorado. Seeing an allegedly liberal president use the great power and force of the federal government to overturn valid laws passed by the people of both of those states - essentially, using force to crush those states' instincts toward greater freedom - could turn this generation against Democrats. These younger voters (not to mention many of those older voters who feel the same as the younger voters) could either embrace apathy or, even worse, buy into the right-wing's gibberish about "personal freedom" (which we all know is a greatly constrained version of freedom). Seeing a Democratic president snuff out the freedom-expanding and bad-law-eradicating decisions of two states' populaces would/will represent a long-term cataclysm for the Democratic Party, which likely would not be contained within those two states.

Don't do it, President Obama. Freedom demands you stay your hand.

[For the record, I do not smoke cannabis/marijuana/whatever you want to call it. But I do believe firmly that the federal government should keep its snout out of this particular issue.]

Originally posted to jhawklefty on Thu Dec 06, 2012 at 09:59 PM PST.

Also republished by DKos Cannabis Law and Drug War Reform.

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