One likely option would be a lawsuit arguing that federal law trumps any state efforts. High anxiety on future of pot laws

The voters have spoken about legalizing marijuana in Colorado and Washington. Now it’s the federal government’s turn — and that might mean the two new referendums are about to go up in legal smoke.

The state ballot measures passed on Election Day creating the world’s most permissive pot laws put the Feds in a bind that could set in motion years of legal wrangling, tax penalties levied against growers or distributors — as well as unclear situations of SWAT-style raids by federal agents despite laxer local authorities.


“The stage is set for a confrontation of massive proportions,” said Asa Hutchinson, the former head of the Drug Enforcement Administration.

Hutchinson, who headed the DEA during George W. Bush’s first term, said he sees only two options for the Obama administration, in the likely event that it doesn’t just ignore the new laws: a lawsuit against both states or enforcement of federal drug laws by federal agents.

The most likely federal response, Hutchinson predicted, would be a lawsuit arguing that federal law trumps any state efforts. The administration should “have the courts decide finally that federal law trumps and that the state law violates the federal law,” he said.

Other former drug enforcers say that approach might work.

“Clearly, there are provisions in both of the initiatives that unambiguously violate federal law,” said Kevin Sabet, former senior adviser at the White House Office of National Drug Control Policy in the Obama Administration. “The regulation and taxation, the fact that you can buy marijuana at the store — that’s clearly in violation.”

Sabet said he would be “surprised” if the federal government stood back and allowed both states to move forward in setting up legal, taxable and regulated marijuana industries.

But that doesn’t worry the people behind these unprecedented experiments in state-level legalization.

“A 55 percent vote to end marijuana prohibition is a clear mandate,” said Brian Vicente, an attorney who helped write the Colorado law, citing the vote results. “It sends a message to our [state] officials and to federal officials.”

Even Amsterdam only tolerates marijuana in a handful of cannabis cafes. Wider use or growing the drug itself is illegal, though those provisions are unenforced. The new Colorado and Washington laws go much further: not only do they explicitly authorize citizens to use pot for recreational purposes, they demand state involvement, with provisions for regulating, taxing and licensing marijuana growers and retailers — creating systems where the drug can be sold just like alcohol.

“I think we would expect the Feds to be particularly concerned with growers and distributors, especially commercial sellers,” Sabet predicted.

There are limits to what the federal government can do. It can’t, for example, force a state to make something a crime or require a state to prosecute its citizens for violations of federal law. If the Feds want to lock up Coloradans and Washingtonians for growing or selling marijuana, they’ll have to investigate, prosecute and arrest them without the cooperation of local officials.

”You can’t make the state change their own state law, that’s true,” Hutchinson said. “But you can go in and say the state does not have the authority to set up a regulatory environment.”

“The federal government has more ability to squash the regulatory structure than it does to squash the actual industry,” echoed Jonathan Caulkins, a public policy professor at Carnegie Mellon and a drug policy expert.

But allowing simple possession by casual users is not really at issue — a number of states have already done away with criminal penalties that, without drawing the ire of Washington and the Feds, don’t generally target individual users. The real fight is over whether a state can license and tax a business that is explicitly breaking U.S. narcotics law.

Other possible enforcement actions by the federal government includes asset seizures by the Internal Revenue Services and the Department of Justice. Caulkins said that the federal government could even seize all of the tax revenue that Washington and Colorado collect off marijuana sales.

“The argument has been made — and I’ve never heard anybody successfully rebut it — that the federal government can seize the proceeds of any illegal activity,” he said. “By that logic, it could seize the tax revenues — even from the states.” The Department of Justice issued a terse statement after the passage of both referendums, reminding potential marijuana growers, vendors and users that the department’s position on drugs is “unchanged.”

The Colorado attorney general has already denied that his state is able to tax pot sales — citing a 1992 law that all new taxes must be specifically approved by voters. The state, he said, will need to hold a separate referendum vote on taxing marijuana.

The Justice Department isn’t tipping its hand yet.

“The Department’s enforcement of the Controlled Substances Act remains unchanged,” Justice Department spokesperson Nanda Chitre said. “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.”

Attorney General Eric Holder and Colorado Gov. John Hickenlooper spoke on the phone Friday about Colorado’s new law, according to aides — but both sides declined to say what was discussed.

Others in the pro-legalization community are more optimistic that President Barack Obama and his second-term administration will be sympathetic to the states rights argument.

“There’s inevitably going to be tension with the Feds,” said Ethan Nadelmann, founder and executive director of the pro-legalization Drug Policy Alliance. “The question is how significant this will be.”

Nadelmann said that the Department of Justice went into overdrive in 2010 to warn California voters against passing a similar ballot measure in that year’s state elections. In a 2010 letter, Attorney General Eric Holder vowed to “vigorously enforce” marijuana laws against users, growers and sellers.

This year, Nadelmann said, the administration hasn’t said anything other than their single statement that the laws haven’t changed — despite urgings from the drug law enforcement community to come out strongly against the measures.

“You saw that the Obama administration held back in the states,” Nadelmann said.

Citing private conversations between Obama and big Democratic donors or Latin American leaders relayed to him second-hand, Nadelmann said that the tea leaves pointed to a shift in drug policy in the second term.

“I wouldn’t hang my hat on that. It’s just to say that there may be a more reasonable approach to all this,” Nadelmann said.

Morgan Fox of the pro-legalization Marijuana Policy Project said that he feels the Department of Justice should tread carefully in ignoring the will of the voters in two states.

“I really don’t think that they have the political capital,” he said about the DOJ.

And ultimately, the two state governments themselves are looking for some direction from the federal government.

Outgoing Washington Attorney General Rob McKenna (R) — who lost his race for governor — opposed the measure from the beginning. A spokeswoman for his office acknowledged the possibility of showdown between the state and the federal government, but declined to comment, citing the possibility of future legal action. State Attorney General-elect Bob Ferguson (D) vowed to move forward with implementation with the cooperation of federal authorities.

“When the time is appropriate, I will meet with my staff and reach out to interested parties, including federal authorities, to develop a plan to move forward and defend the will of the people,” Ferguson said in a statement.

Colorado Attorney General John Suthers (R) said he’s going to start putting together the legal structure to support the new law, but he’s skeptical about whether it will hold up. The federal government needs to be clear about what it’s going to do.

“I call upon the United States Department of Justice to make known its intentions regarding prosecution of activities sanctioned by Amendment 64,” Suthers said in a statement.

Kevin Robillard contributed to this report.