Senior administration officials acknowledged Friday that they are wrestling with how to respond to the legalization of marijuana in Colorado and Washington, which directly violates federal drug law and is sparking a broad debate about the direction of US drug policy.
The most likely outcome will be that the Justice Department will prevent the laws from going into effect by announcing that federal law preempts the state initiatives, which would make marijuana legal for recreational use, law enforcement sources said. But the White House and the Justice Department have not made a decision yet, senior officials said.
"I really don't know what we're going to do," said one high-ranking law enforcement official involved in the decision who was not authorized to speak publicly.
Washington state and Colorado approved initiatives on Tuesday to decriminalize the possession of less than an ounce of marijuana. Oregon defeated a similar measure. Up to this point, the Justice Department and the White House Office of National Drug Control Policy have been mute about the ballot initiatives. Before the election, the Justice Department did not respond to nine former administrators of the Drug Enforcement Administration who wrote a letter urging the administration to take a stance on the ballot proposals in all three states.
One administration official Friday suggested that the administration's silence was a deliberate strategy to avoid antagonizing liberal voters in Colorado, a crucial swing state.
"It was a battleground state," said the administration official, who spoke on the condition of anonymity because he was not authorized to talk publicly.
In similar instances, officials have made the administration stance clear ahead of votes. In 2010, Attorney General Eric H. Holder Jr. said that the administration opposed a pending California measure to legalize marijuana. That same year, the Justice Department sued Arizona to block its law cracking down on illegal immigrants because the administration said it violated federal statutes and was unconstitutional.
Rafael Lemaitre, spokesman for the Office of National Drug Control Policy, said he could not comment on the marijuana initiatives or discuss how the administration will respond. He deferred questions to the Justice Department. Jay Carney, the White House press secretary, said at the press briefing Friday only that the Justice Department was reviewing both initiatives. Justice spokeswoman Nanda Chitre would not comment except to say that the department is "reviewing the ballot initiatives."
The Colorado and Washington laws go beyond provisions for the medical use of marijuana. Washington,D.C., and 18 states have passed laws making it legal to manufacture, distribute and possess marijuana for medicinal purposes.
While the Justice Department figures out how to respond, state and local officials in Colorado, Washington — and Mexico — are confused about how to proceed. Colorado Gov. John Hickenlooper (D) and the state's attorney general spoke to Holder on Friday.
"They emphasized the need for the federal government to articulate what its position will be related to Amendment 64," said Eric Brown, the governor's spokesman. "Everyone shared a sense of urgency and agreed to continue talking about the issue."
Washington state Gov. Chris Gregoire, a Democrat, has not scheduled a call with Holder but said her state is "entering uncharted waters."
The law there goes into effect Dec. 9. Gregoire's spokesman, Cory Curtis, said the governor has questions about what Washington should do in the next month.
Colorado Amendment 64 would take effect 30 days after the secretary of state certifies the initiative, which will be Jan. 5, according to Brown.
Marijuana distribution is the largest source of revenue for the Mexican cartels, according to law enforcement officials.
Lawrence Payne, DEA spokesman, said that more marijuana is seized at the southwest border than any other illegal drug from Mexico. Last year, 1,962,285 kilos of marijuana were seized compared with 23 ,797 kilos of cocaine and 1,308 kilos of heroin.
Supporters of the measures argue that hundreds of millions of dollars have been wasted on a failed war against marijuana. They contend that decriminalization would bring in hundreds of millions of dollars in tax revenue, with the funds used for education, health care and other government services.
The Office of National Drug Control Policy strongly opposes the legalization of marijuana and the federal Controlled Substances Act prohibits the production, possession and sale of marijuana.
"According to scientists at the National Institutes of Health, the world's largest source of drug abuse research, marijuana use is associated with addiction, respiratory disease and cognitive impairment," ONDCP director Gil Kerlikowske wrote in a White House document.
"Studies also reveal that marijuana potency has almost tripled over the last 20 years, raising serious concerns about what this means for public health," wrote Kerlikowske, who is often referred to as the country's "drug czar."
The president's 2012 National Drug Control Strategy also states that "the legalization of drugs will not be considered."
"Making drugs more available and more accessible will not reduce drug use and its adverse consequences for public health and safety," according to the 61-page policy. "We will continue to educate young people and all Americans about the science on the harmful health effects of marijuana use."