The Pot Primary

And you thought pot-smokers were lazy. While Washington has convulsed in gridlock and dysfunction, marijuana advocates have won ballot initiatives to legalize recreational use in Colorado and Washington, swung public opinion in favor of full legalization for the first time and begun knocking on the door in at least four other states. Alaska, California, Oregon and Nevada are all mulling decriminalization campaigns in 2014 or 2016, and they may be joined by others.

That success has also set up a vexing legal paradox: If marijuana, long illegal under federal law, is permitted by a state, smoking pot in that stateâ€"or buying it, or selling itâ€"is both legal and illegal at once. And although the Justice Department and its law-enforcement authorities have allowed state laws to take effect this month as planned, there is every reason to believe the truce to be tenuous. “You can’t have a stable policy regime when the laws are at odds,” a former Obama official who worked on marijuana regulation told me.

President Obama himself, the first president to admit openly that he both smoked and inhaled marijuana, told Barbara Walters late last year that he’s “got bigger fish to fry” than going after users in states where pot is legalâ€"and anyway, almost all low-level busts are made by local authorities in accordance with local law. But the Constitution’s Supremacy Clauseâ€"which says that federal laws trump those in the statesâ€"is a stubborn thing, and federal prosecutors and law-enforcement agents based in the states have recently undergone a good deal of whipsawing on this issue. What’s to be done about legal dispensaries that run afoul of regulations and sell too laxly? What about marijuana crossing state lines?

Holding all of the contrary rules in temporary equilibrium is the fact that our justice system runs on prosecutorial discretion, a bow to the reality that finite law-enforcement resources must be targeted where they’re most needed. Prosecutors look to the Department of Justice for guidance, and the Justice Department in turn looks to the president. So while legalization has of late been a battle waged state by state, the near-term future of pot in America could well be decided by the 2016 presidential electionâ€"and the new chief executive’s choice of an attorney general. Mark Kleiman, a drug policy expert at UCLA and a prominent reform advocate who helped Washington State put together the regulations for its new marketplace, put it this way: “You could reappoint John Ashcroft as attorney general and people could be going to prison for long terms for things that they’re doing right now.”

It’s not clear yet what a marijuana debate within the GOP would look like: While it might be good politics to get behind an issue that most Americans support, only 37 percent of Republican voters favor legalization, compared with 58 percent overall. Republicans have traditionally stood for law and order, and against the kind of social decay that pot-smoking so handily representsâ€"yet they also stand for states’ rights, minimal government and personal liberty. All of which means that with the next round of states considering legalization initiatives in the next two cycles, candidates, who until now have been able to laugh off questions about legalization, are going to find that they have to talk about it.

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The pot problem was supposed to have been solved by now, one way or the other. As far back as 1971, Richard Nixon promised that “the final question is not whether we will conquer drug abuse, but how soon,” touching off an escalating investment in getting drugs off of American streets. Conversely, legalization advocates in the Carter era were predicting that marijuana would be fully legal by the early 1980s.

Yet here we are: It’s 2014, and the debate over what to do about pot rages on. In October, Gallup registered its first-ever majority in favor of legalization, with 58 percent in supportâ€"an increase of 10 points over the previous year. And with the dawning of the new year, Colorado and Washington are beginning the messy process of creating the legal marijuana marketplaces their citizens voted to enact.

Butâ€"and it’s a big butâ€"the federal Controlled Substances Act of 1970 still classifies pot as a highly dangerous Schedule I drug; in the eyes of Uncle Sam it has “no currently accepted medical use and a high potential for abuse.” Clearly, the many, many users of marijuana in the United States tend to disagree with both of those claims. And while the 2012 initiatives out west marked a historic first, those two states were already among the 20 (plus Washington, D.C.) that allow the use of marijuana for medical purposesâ€"in some cases more or less indistinguishably from a legal recreational market. As Kleiman noted, medical marijuana is already “an open racket” in places like California. “The vast bulk of the cannabis is being sold to healthy 20-year-olds.”

Reid Cherlin is a writer in New York and a former White House spokesman in the Obama administration.