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

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 state—or buying it, or selling it—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 legal—and anyway, almost all low-level busts are made by local authorities in accordance with local law. But the Constitution’s Supremacy Clause—which says that federal laws trump those in the states—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 election—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 represents—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 support—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.

But—and it’s a big but—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 purposes—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.”

For its part, the Obama administration has zigged and zagged on whether to enforce federal law in states where marijuana is legal, only adding to the confusion. In late 2008, when the Obama transition team was still working out of a downtown D.C. office building, staff members began drafting a memo to be issued by David Ogden, the soon-to-be-installed deputy attorney general, on priorities for enforcement. What came to be known as the Ogden Memo, released the following October, directed U.S. attorneys in states that had legalized medical marijuana to go after dealers and crooks, and “not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws.” Marijuana advocates took this is as a long-awaited wink-wink from the president (who, after all, ran with a high school clique called the Choom Gang) that they could now light up with impunity.

Problem was, enforcement actions against dispensaries that were legal in their home states actually increased, leading to what Rolling Stone, in a piece titled “ Obama’s War on Pot,” called “a shocking about-face.” But then this past August, the administration released another memo, this one from Deputy Attorney General Jim Cole, announcing that states could go forward with recreational legalization and that the feds would take a “trust but verify approach.”

“The memo gives plenty of room for maneuvering on both sides,” said Kevin Sabet, of the anti-legalization group Project SAM (for Smart Approaches to Marijuana). “If people think the Cole memo won’t lead to state-level prosecutions, I would remind them about the Ogden memo, which led to the most punitive period in recent drug-enforcement history.”

As advocates at the state level mull where and when to move forward—the debate there has centered on whether to aim for ballots this fall or hold off until the higher-turnout presidential election in 2016—one thing is clear: The candidates, and their country, are going to need a coherent policy very soon.

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It’s probably safe to assume that if Democrats retain control of the White House, the new president will, at minimum, keep in place the Justice Department’s laissez-faire stance. (There has been little talk of actually amending the Controlled Subtances Act.) Less predictable is what would happen under a Republican—or how the issue might play out in a volatile Republican primary. No one expects marijuana to be the deciding issue, but then again, it might well be a helpful way for the contenders to highlight their differences.

Of the likely 2016 entrants, Marco Rubio and Chris Christie—should the latter survive the fallout from Bridgegate—have taken the most ironclad positions. In December, Christie told reporters that he was opposed to any expansion of the state’s medical marijuana program, which was signed into law by his predecessor, Democrat Jon Corzine. “Here’s what the advocates want: They want full legalization of marijuana in New Jersey,” Christie said. “It will not happen on my watch, ever. I am done expanding the medical marijuana program under any circumstances. So we’re done.” Rubio, too, has pretty much closed the door on any pro-pot position. Commenting this month on a potential medical marijuana initiative in Florida, he said that he’d “like to learn more about” clinical uses, but that “the broader issue of whether we should be legalizing it is something I’m pretty firm about. I don’t think legalizing marijuana or even decriminalizing it is the right decision for our country.”

Then there’s Rand Paul, whose father made decriminalization a legislative priority long before it was anywhere near a majority position and lifted the hopes of his young, anti-authoritarian fan base. Like his father, Rand has been vocal in his support for changing the way that drug offenders are sentenced, even offering to work with new Sen. Cory Booker (D-N.J.) on reforming mandatory minimums. But he also appears to feel the tug of mainstream electability more than the elder Dr. Paul ever did. In June, Rand attempted to split the difference, saying, “I don’t really believe in prison sentences for these minor, nonviolent drug offenses, but I’m not willing to go all the way to say it is a good idea either. I think people who use marijuana all the time lose IQ points; I think they lose their drive to show up for work.”

At a conference for Texas Republicans last week, Sen. Ted Cruz seemed sympathetic to arguments for reform: “You can make reasonable arguments on that issue,” he said. But then he bashed Obama for backing away from the federal prohibition on marijuana. “You could discuss commonsense changes that maybe should happen or shouldn’t happen,” he said, but “this president didn’t do that.” The criticism struck some on the right as off-key in the broader context of the small-government movement. “It was very weird that Ted Cruz, Mr. Limited Government, was out there saying that,” said Joe Megyesy, a Republican lobbyist who ran conservative outreach for Colorado’s legalization initiative. “It’s a states’ rights issue.”

The debate sets up a clash between two pillars of the Republican identity: morality and liberty. “They’re going to come in conflict with each other, for sure,” said Megyesy. “It’s going to be growing pains now as the Republican Party looks for its next breath of life. It’s really hard for them to say, ‘Oh, we would uphold federal law when it comes to marijuana, but push back on federal law on gun control or healthcare.’ I think there’s a big inconsistency there.”

The uncertainty about how to treat the issue is palpable in conservative news outlets. “I think it’s about time we legalize marijuana,” Glenn Beck said on his show in 2011. “This is ridiculous: We either need to enforce our laws or change the laws.” But, he added in another segment, he doesn’t want to be stuck with your health care bill when marijuana “rips your lungs up.” Predictably, the segment opened with reggae music and Beck holding up a platter of what he said were pot brownies—a peril of the debate not limited to Beck and his show. “Every time I go on TV to talk about this,” Mark Kleiman told me, “the lead-in is either Cheech and Chong or ‘Rocky Mountain High.’ It’s a topic you still can’t talk about with a straight face, and that leads politicians to shy away from it. That’s going to have to change at some point.”

Kevin Sabet, of Project SAM—which counts Democrat Patrick Kennedy and Republican David Frum among its co-chairs—said the forces arrayed against legalization won’t be giving up easily. Sabet’s organization is in the process of starting a PAC and getting involved in the state-level battlegrounds where policy is being changed.

Future candidates, Republicans especially, are also likely to find themselves grappling with marijuana-related questions that can dazzle and surprise with their novelty: What, for example, is an anti-pot but also anti-tax lawmaker to do when confronted with measures regulating how much of a cut the state should get from the newly legalized marijuana trade? This is not a hypothetical, by the way: A major selling point of the Colorado and Washington initiatives was that by finally forcing the pot trade out of the shadows and subjecting it to a legal framework, states would now be in position to capture substantial new revenue. But in Colorado, Republicans in the state house who had opposed the initiative then took to the floor to argue that the tax rates on marijuana should be lower. “All these Republicans, even the ones who were vehemently opposed to legalization, when the tax question came up, they were the first ones there in committee arguing against a high rate of taxation,” said Megyesy, who as part of the legalization campaign had been able to persuade only one Republican state legislator to come out in favor of the bill. “It was really fascinating to see those folks saying, ‘Hey, this tax is ridiculous. If we’re going to do this, we should have lower taxes.’”

Other perils await: Because prices on the lawful market are expected to be higher at first than on the illicit market, legalization’s success may depend on stepped-up enforcement against street-corner drug dealers and their customers—exactly the busts that many in the reform crowd were hoping to stop in the first place. And there seems to be consensus that pot use will increase markedly, an outcome few are cheering. The logic is pretty simple: “Legalization reduces prices. Cannabis use responds to price. Therefore legalization will increase use,” Kleiman said. “Moreover, legalization improves access and reduces stigma and risk. That should encourage still more use. A 50-percent increase in use seems like a reasonable lower bound.” Both Sabet and Kleiman also spoke in grim terms about the emergence, somewhere down the road, of a marijuana industry that may well begin to act like the tobacco lobby used to, pouring money into weakening regulation and questioning science.

Still, supporters say it’s an idea whose time has come. Perhaps because the status quo is even less appealing, or perhaps because all those Reefer Madness warnings never quite came true. With the right messaging, activists say, reform could become a political winner—or at the very least, that standing for prohibition will be a loser. Megyesy, a former Republican congressional staffer himself, says it’s time for his party to give it a shot: “What more can the Republican Party do to alienate younger voters?” he said. “Any Republican who comes out against this is setting himself up for trouble.”

Correction: This article has been updated to correct several errors. Patrick Kennedy, not Patrick Murphy, is a co-chair of Project SAM. The organization's name stands for Smart Approaches to Marijuana, not Safe Alternatives to Marijuana. Kevin Sabet's quote that the Ogden memo led to the "most punitive period in drug-enforcement history” was corrected to say "the most punitive period in recent drug-enforcement history."