By Donald Scarinci | November 15th, 2012 - 10:20am
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During NBC’s election night coverage, Brian Williams remarked, “There's a whole lot of weed on the ballot tonight.” Recreational use of marijuana was approved by ballot initiatives in Colorado and Washington. Massachusetts also joined a number of states, including New Jersey, in legalizing the drug for medical use.

In Colorado, Amendment 64, which legalizes recreational use of marijuana, garnered more support than the President, beating him out by 53,281 votes. Nonetheless, Gov. John Hickenlooper, a Democrat who opposed the initiative, tried to tempter voter expectations of what will happen next.

“The voters have spoken and we have to respect their will," Hickenlooper said in a statement. "This will be 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.”

While voters largely appear to support the legalization of marijuana, the federal government is slow to get on board. Marijuana is still illegal under federal law, which trumps any state law to the contrary. As confirmed by the Supreme Court in 2005, the Commerce Clause of the U.S. Constitution authorizes the federal government to enforce the Controlled Substances Act despite state laws legalizing various types of marijuana use.

The question now is how far the Department of Justice will go to enforce the law, particularly if states like Colorado seek to regulate and tax the sale of marijuana. Justice Department spokeswoman Nanda Chitre said in a statement: "The department's enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiatives and have no additional comment at this time."

Despite the statement, the government’s legal stance on marijuana has certainly softened since in first became illegal over forty years ago. The fact that the DOJ has not already come out directly against the ballot initiatives suggests that …”The times they are changing…”

For more on the legal history of marijuana, check Thursday’s article on www.ConstitutionalLawReporter.com and check back here next week.

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Donald Scarinci is a managing partner at Lyndhurst, N.J.-based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government & Law blogs.

 

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