Legalization will prompt real-time policymaking

On Nov. 6, Colorado voters gave their blessing to make recreational use of marijuana legal in the state. With the historic vote, though, comes no small amount of regulatory housekeeping — to say nothing of legal wrangling — before the landscape for pot users becomes clear. It offers a rare opportunity to watch policy take shape through a number of avenues likely to include all three branches of government, as well as local, state and federal entities. It could result in a giant mess or an unprecedented achievement — or both.

Amendment 64 made legal the sale and possession of up to one ounce of marijuana for those ages 21 or older in Colorado, and also gives the state, via legislative action, the right to regulate the industry — from cultivation to sale — including levying taxes. The amendment further gives local entities the right to regulate or prohibit cultivation, testing or retail facilities, as well as dictates that the first $40 million in taxes collected from marijuana sales each year be used to fund public school capital construction needs. These provisions invite lawmakers at the state and local levels to involve themselves in enacting the amendment, but they also invite attention from federal law enforcers, who are bound by a different understanding of how marijuana should be treated: as a Schedule I controlled substance.

As such, there is an inherent conflict set up between Colorado and the federal government — one that has been neatly danced around up to now with the state’s tightly regulated medical marijuana laws. How the broadening of the state’s embrace of marijuana use will affect federal action remains to be seen. There is speculation that a federal injunction will be issued against Amendment 64 until the legal issues are resolved, and there is a decidedly unenthusiastic feeling about the amendment among Colorado’s top lawmakers. Gov. John Hickenlooper and Attorney General John Suthers have both made their opposition to the measure well-known.

Nevertheless, voters have spoken strongly and the law now says that marijuana possession and use are legal in the state. The state’s regulatory framework that has made the medical marijuana industry work so well in Colorado could provide a useful model upon which to build the recreational regulatory structure. That system closely monitors and accounts for all the marijuana legally grown, processed and sold in dispensaries across the state. In so doing, the state has avoided a marijuana free-for-all and instead has created a clear, navigable system by which growers and distributors can structure their operations.

This system does not consider the moral or social implications of marijuana use, nor should it, though that is ultimately what underpins much of the argument around evolving marijuana laws. With the passage of Amendment 64, Colorado seems to be moving beyond that question and is well on its way to working out the mechanics. What remains to be settled is how the federal government will respond, and which entities’ feelings on the subject take precedence.