Keith Stroup - The Gift from Obama

Keith Stroup - The Gift from Obama

FRONTLINE "Dreams of Obama"

Many marijuana smokers were thrilled when Barack Obama became president since he'd previously “outed” himself in his 1995 memoir Dreams From My Father. In his memoir, Obama acknowledges that he and his friends in the “Choom Gang” were regular marijuana smokers during his high school years in Hawaii, a practice he apparently continued while attending Occidental College in LA for two years followed by two years at Columbia University in New York.

This was further confirmed by David Maraniss' in his 2012 biography titled Barack Obama: The Story, which provided more details and suggested that Obama had been a serious pothead during his youth, favoring local Hawaii strains such as Maui Wowie, Kauai Electric, Puna Bud, and Kona Gold; none of which apparently limited his ability to excel academically, as he was subsequently President of the Harvard Law Review in 1991.

Many of those same smokers became disillusioned when President Obama did nothing to advance legalization during his first term, and on the occasion when the topic was raised by a White House petition or otherwise, he refused to treat marijuana legalization as a serious policy topic, instead making jokes about what all those petition signers must have been smoking - deflecting a question on a hot-button social issue, but it also felt insulting to those of us who smoke.

Perhaps because I have lived in Washington, DC for 48 years and have seen too many administrations come and go, I did not expect Obama to do anything significant to advance marijuana legalization during his first term. Controversial policy changes generally come, if at all, during a president’s second term, when he faces no future elections, and is sometimes willing to risk some of his personal popularity to embrace a policy on principle.

That appears to be precisely what has occurred with Obama.

When both Colorado and Washington voters approved full marijuana legalization in 2012, the federal government was faced with the option of whether to go to federal court and seek to enjoin the provisions allowing for the licensing off marijuana growers and distributors under the Supremacy Clause of the US Constitution. No state has a legal obligation to mimic federal law, so any state could remove its laws against marijuana.  When a state adopts what the courts call a “positive conflict” with federal law, however, the federal law prevails. Most legal observers believe the Department of Justice would have prevailed in such a legal showdown.

In a move that surprised most, the Obama Justice Department took a different tact, and one that was invaluable to the legalization movement - they issued a series of memos by Deputy Attorney General Cole laying out several criteria under which any state legalization law, including both medical use and full legalization, would be evaluated.  The feds would stand down and permit these laws to be fully implemented, as long as the states made a good-faith effort to minimize adolescent use and avoid diversion of marijuana to other states where it remains illegal under state law.

Speaking with ABC’s Barbara Walters in December of 2012, the president explained it didn’t make sense to prosecute people for recreational drug use in states where it is legal, saying it would be a waste of federal resources.

“Well, I wouldn’t go that far. But what I think is that, at this point, Washington and Colorado, you’ve seen the voters speak on this issue. And as it is, the federal government has a lot to do when it comes to criminal prosecutions. It does not make sense from a prioritization point of view for us to focus on recreational drug users in a state that has already said that under state law that’s legal."

In other words, President Obama has given the legalization movement 2-3 years to demonstrate that we can legalize, regulate and tax marijuana in a responsible manner, without the fear of federal interference – a sort of free-zone until the end of his second term. That is an incredible gift, and should allow us to demonstrate that legalization works better than prohibition for everyone; law-enforcement as well as consumers, and that it will raise a significant new stream of badly-needed revenue for the states.  If we succeed, it is hard to imagine the next administration, whether Republican or Democrat, will have the political support required to attempt to roll-back our progress at the state level.

Of course, we eventually need to change federal law so we do not have to rely on the deferential discretion of the Department of Justice for these innovative new state laws to be implemented. At the end of alcohol prohibition, the government ended federal prohibition and allowed the various states to adopt whatever alcohol policy they wanted; they could keep alcohol illegal, or experiment with different models of legalization - that is the goal we should have for ending marijuana prohibition.

At the moment however, we simply do not have the support in Congress to achieve that.

Legalization in Colorado and Washington is incredibly important, not just to those living in one of the two states but to the entire country. We must implement these legalization laws, as well as a couple of new states expected to approve full legalization this November, in a manner that reassures the general public, especially non-smokers, that they have nothing to fear from marijuana legalization.  This is not the time for confrontational tactics, but for bridge-building and honest communication about what a just and fair legalization system should look like.

A big piece of that challenge will be to convince smokers that we all have the obligation of acting responsibly as we exercise our newly-won freedom.

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