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.
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.
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 Joe Megyesy, [a Republican lobbyist who ran conservative outreach for Colorado’s legalization initiative.] “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.”
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.”