It may be surprising, but no state is required to have a law making possession of marijuana, or any drug, a crime. Therefore, any state can legalize some or all marijuana possession if it chooses. The federal government, if it chooses, can enforce the federal law against its possession and use, but it is up to each state to decide what to criminally prohibit, based on the 10th Amendment. This basic insight has been lost in the public discussion about whether the initiatives legalizing possession of small amounts of marijuana passed by Colorado and Washington voters in November are pre-empted by federal law. The two states will soon finalize regulations to implement those initiatives, including how to tax and regulate marijuana. U.S. Attorney General Eric Holder told a recent meeting of state attorneys general that the Justice Department review of the initiatives was winding down, suggesting an imminent decision as to whether it intends to challenge the initiatives as being pre-empted by federal law.
