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Colorado and Washington legalized recreational marijuana, but how will federal authorities respond?

A woman passes a joint at a pro-marijuana
A woman passes a joint at a pro-marijuana "4/20" celebration in front of the state capitol building April 20, 2010 in Denver, Colorado. Colorado, one of 14 states to allow use of medical marijuana, has experienced an explosion in marijuana dispensaries, trade shows and related businesses in the last year as marijuana use has become more mainstream.
John Moore/Getty Images

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California was the first state to legalize the use of marijuana for medicinal purposes, but Colorado and Washington have become the first states to allow the recreational use of the plant.

“It’s important to put what happened in Colorado and Washington into perspective”, says Beau Kilmer, co-director of the RAND Research Policy Center. “No modern jurisdiction has ever removed the prohibition on commercial production, distribution, or possession of marijuana for non medical purposes. Not even Holland.”

The two states’ newly passed initiatives directly conflict with federal law and may instigate an imminent legal battle with the Obama administration. Federal law prohibits the production, possession and sale of marijuana, which is classified as a Schedule 1 drug − the same category as LSD and heroin. 

“This type of change I think should help let the federal government know that maybe they should let the states experiment and determine if it’s the right policy or not," said Joe Elford, Chief Counsel, Americans for Safe Access.

Elford notes the victories in Colorado and Washington could also have an effect on California’s Supreme Court case of localities banning medical dispensaries. “When you have positive momentum, I would expect that will influence how courts deal with the issue as well as the federal government,” he said.

On Wednesday, the Justice Department said it was only reviewing the state initiatives, but otherwise has been unusually quiet on the matter.

The legalization of non-medical pot also raises legal questions for another federal agency, the Internal Revenue Service (IRS.) No matter how “legal” the states consider the plant to be, the IRS cannot legally ignore tax code Section 280E, which denies deductions for any business trafficking in controlled substances. 

Although some medical marijuana dispensaries have found small loopholes in federal tax law in order to conduct business, it is unclear whether companies dealing in recreational pot will be able to do so.

Will Colorado and Washington ignite a trend to legalize recreational marijuana across the nation? How should federal authorities handle state-approved recreational use of pot?


Joe Elford, Chief Counsel, Americans for Safe Access

Beau Kilmer, co-director, RAND Drug Policy Research Center