Hopes (and other things) are high in Colorado and Washington, as the people passed ballot initiatives to legalize the recreational use of marijuana. One big problem though. It is still illegal under federal law. The Supreme Court in Gonzales v. Raich upheld this power, ruling that even Angel Raich grew pot on her backyard, it affected interstate commerce because it was part of a broader regulatory scheme (stressed in Scalia’s concurring opinion). I think the argument that growing marijuana locally for personal use is not part of any interstate market. But in Colorado and Washington, where marijuana dispensaries are legal, there is certainly a market. These dispensaries fall clearly within Raich. This referendum is clearly a nullification of federal law. No different from states passing referendums saying that health insurance mandates cannot be enacted (Wyoming, Alabama, and Montana did that last night). (My friend Ian who blogs at Think Progress hasn’t whipped out the good ‘ol John C. Calhoun portrait for these nullification posts.) Supremacy Clause trumps.

Now, Eric Holder’s Justice Department has continued to raid marijuana dispensaries (despite President Obama’s 2008 campaign promise not to). So what happens next? It is possible that the Holder will challenge this law on grounds that it is preempted by federal law. Though, the law will take about a year to be implemented so there will be some time for an as-applied challenge. Though a facial challenge could be brought sooner.

Or, as Emily Bazelon urges, the DOJ should let Colorado and Washington “experiment with drugs.” (I love the double entrendre with drug experimentation and Brandeis’s laboratories of democracy imagery).  And we might see POTUS “pivot.”

The first is a report in GQ last summer claiming that President Obama wants to “pivot” on the war against drugs in his second term. “From his days as a state senator in Illinois, Obama has considered the Drug War to be a failure,” Marc Ambinder wrote. This has widely been read as a sign that the Justice Department will ease up on marijuana enforcement, even though that’s not what happened this fall in California. I’m not sure I see it, but I’m more intrigued by Holder’s decision not to make a stern statement before Tuesday’s election like the one he made in 2010, even when he came under public pressurefrom former Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy. These officials pointed to the upcoming initiatives in Colorado and Washington and called legalizing marijuana a threat to public health and safety and a “danger that touches every one of us.” One former drug czar called it “shocking” that Holder hadn’t spoken up.

But if he doesn’t, how will this case get to court. Presumably there are people who are currently under indictment in Colorado for marijuana offenses, and no doubt there will be people under indictment for marijuana offenses after the law is implemented. One of those defendants could move to dismiss the indictment based on the fact that the state law legalizes marijuana. Any competent DOJ lawyer would argue that the state law is preempted. Now, would the DOJ lawyer argue that the state law is completely preempted. Or simply argue that it does not apply for this case. My guess is DOJ could not responsibly take the former position. In other words, a single suit to dismiss the indictment would likely lead to a federal court being forced to strike down the state referendum (hey SCOTUS struck down the Colorado proposition at issue in Romer v. Evans).

Maybe Obama 2.0 will be better on these issues. Prosecutorial discretion though only goes so far.