In Colorado, Governor Hickenlooper has until Jan. 5 to amend the state constitution and allow recreational users to possess up to an ounce of marijuana and up to six marijuana plants for private use. But the bigger test will come later. Both ballot initiatives direct their states to set up a system that licenses, regulates, and taxes commercial distributors of marijuana – meaning that for-profit pot shops could start springing up by 2014.
In the immediate term, that means that both states will likely see decriminalized possession pass unchallenged.
"The feds have no interest in [going after individual users]," says Sam Kamin, a law professor at the University of Denver. "They don’t have the resources to do that, and there's nothing they can do from a legal point of view to make the state reverse that decision."
When it comes to street-corner businesses selling marijuana for recreational use, on the other hand, it may be a different story, and President Obama will have to decide how – or if – to confront that more flagrant violation of federal law.
The options available to him and to Congress include the following:
• Focus resources on enforcing federal law where the states choose not to, launching full-scale criminal cases against marijuana growers, dealers, and distributors.
• Focus on non-criminal actions to make life difficult for the distributors who pop up – threatening to seize all their assets, or cracking down on the landlords or banks who work with them, or enforcing the tax code that bars drug distributors from making deductions for business expenses.
• Compromise by focusing only on certain egregious activities – distributors who look like they're shipping marijuana out of state, for instance, or who are selling to minors.
• Direct federal prosecutors to use their discretionary power and largely ignore marijuana cases in those states that allow its use.
• Threaten to withhold federal funds from local and state police offices that don't enforce federal drug laws.
• Amend federal law to specifically exempt states that allow marijuana use from federal drug prosecution.