Marijuana Laws: Federal Power Over State Legalization

Marijuana laws in the United States are rapidly evolving, with a growing number of states legalizing the drug for medical and recreational use, despite federal law classifying it as a Schedule I drug. This has created a complex legal landscape, with state and federal laws often conflicting, leading to confusion for consumers, businesses, and law enforcement. While the federal government has taken a relatively hands-off approach, allowing states to implement their own regulations, the discrepancy between state and federal laws remains a significant issue. This situation has led to discussions about potential changes to federal cannabis policies, including the Cannabis Administration and Opportunity Act, which aims to end federal cannabis prohibition and allow states to set their own policies.

Marijuana is a Schedule I Drug under federal law, but states have started legalising it

Marijuana is classified as a Schedule I Drug under federal law, which means it is treated as one of the most serious and deadly drugs. Despite this, several states have started legalising it for medicinal and recreational use, creating a conflict with federal law. This conflict is addressed in the Supremacy Clause of the US Constitution, which states that federal law supersedes state law. However, the federal government has taken the position that state regulatory activity does not violate the Supremacy Clause, as states do not prevent federal authorities from enforcing their laws.

In 2013, the Department of Justice released the Cole memo, which advised federal prosecutors to not prioritise marijuana enforcement as long as states implemented "robust" regulation. The memo identified several enforcement areas that federal law enforcement would focus on, including preventing cannabis revenue from funding gangs, preventing distribution to minors, and preventing cannabis from crossing state lines. While the Cole memo was rescinded in 2018, it appears that the policies it articulated continue to reflect the Department of Justice's approach to marijuana enforcement.

The conflict between state and federal marijuana laws has created challenges for consumers, regulators, law enforcement, and businesses. For example, a person can comply with state marijuana laws while unknowingly violating federal law. This situation is unlikely to change until federal law changes. There have been some efforts to reform federal cannabis policies, such as the Cannabis Administration and Opportunity Act, which aims to deschedule cannabis and allow states to create their own cannabis policies. Additionally, the MORE Act seeks to end the war on cannabis at the federal level by removing it from the Controlled Substances Act.

As of March 2025, marijuana laws are rapidly changing across all 50 states, with 39 states, D.C., Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands having effective medical cannabis laws. Some states are also proposing bills to improve or restrict existing legalization, medical cannabis, and decriminalization laws. These varying laws can be confusing for residents and visitors, who must navigate the different rules and regulations regarding marijuana use in each state.

State marijuana laws are at odds with federal enforcement, creating confusion for citizens

Marijuana laws are rapidly changing across all 50 states, creating confusion for citizens as state laws are at odds with federal enforcement. While the federal government continues to enforce marijuana prohibition, classifying it as a Schedule I Drug, state governments are regulating cannabis production and sales, with 39 states, D.C., Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands having effective medical cannabis laws. This has created a number of challenges for consumers, regulators, law enforcement, and businesses.

The area of law that addresses the conflict between state and federal laws is referred to as the Supremacy Clause of the US Constitution. While state laws only apply to citizens within a particular state, federal law applies to all US citizens, resulting in a "clash" between state and federal marijuana laws. An individual can comply with one set of marijuana laws while violating another. For example, a person in California may possess marijuana legally under state law, but this possession is still illegal under federal law.

The federal government has taken the position that state regulatory activity does not violate the Supremacy Clause, as states do not prevent federal authorities from enforcing their own laws. In 2013, the Department of Justice released "the Cole memo", which advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide robust regulation. This memo was rescinded in 2018, requiring US Attorneys to enforce the laws enacted by Congress. However, federal prosecutors still have discretion in handling marijuana activities, and personal possession cases at the federal level are rare.

To address this confusion, citizens must stay informed about the laws in their state and understand the varying rules regarding marijuana use. Additionally, there are ongoing efforts to reform cannabis policies at the federal level, such as the Cannabis Administration and Opportunity Act, which aims to end federal cannabis prohibition and allow states to craft their own policies.

The federal government has not stopped states from legalising marijuana

Marijuana laws are rapidly evolving across the United States, with a growing number of states legalising the drug for medical and recreational use. Despite federal prohibition, several states have implemented their own marijuana policies, creating a conflict between state and federal laws.

In 1996, California was the first state to legalise medical marijuana, allowing an exception to state law for residents with specific medical requirements. Since then, numerous other states have followed suit, with 39 states, D.C., Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands having effective medical cannabis laws as of 2025. Some states have gone even further, legalising adult-use cannabis. This has led to a situation where individuals can comply with state marijuana laws while simultaneously violating federal law.

The discrepancy between state and federal laws lies in the area of law known as the Supremacy Clause of the US Constitution, which addresses conflicts between state and federal laws. While state laws only apply to citizens within that state, federal law applies to all US citizens. Interestingly, the federal government has not actively prevented states from legalising marijuana, despite the conflict with federal statutes. The federal government's position seems to be that state regulatory activity does not violate the Supremacy Clause, as states do not hinder federal authorities from enforcing their laws.

In 2013, the Department of Justice released "the Cole memo," which clarified their approach to enforcement. The memo stated that federal law enforcement would focus on specific areas, such as preventing marijuana revenue from funding gangs and preventing distribution to minors, while leaving it to states with legal cannabis to establish strict regulatory systems. This reflected a recognition that some regulation is better than none. However, in 2018, Attorney General Jeff Sessions rescinded the Cole memo, marking a shift in federal enforcement priorities.

Despite the federal government's stance on marijuana, several pieces of legislation have been introduced to reform federal cannabis policies. For example, the Cannabis Administration and Opportunity Act aims to deschedule cannabis, allowing states to create their own policies, similar to alcohol regulations. Additionally, the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act seeks to end the war on cannabis at the federal level by removing it from the Controlled Substances Act. These legislative efforts reflect a growing movement towards legalisation and the acknowledgement of the challenges posed by conflicting state and federal laws.

The Department of Justice issued the Cole memo in 2013, outlining its enforcement approach

The Cole Memorandum, or Cole Memo, was issued by the Department of Justice in 2013. It outlined a shift in the enforcement approach to marijuana laws, moving from strict enforcement of federal prohibition to a more hands-off approach in states that had legalised marijuana. This memo was authored by then-United States Deputy Attorney General James M. Cole and provided guidance to federal law enforcement on crimes related to the cultivation, distribution, sale, and possession of marijuana in states that had legalised the drug.

The Cole Memo advised federal prosecutors to exercise restraint in enforcing marijuana prohibition in states with legalised cannabis, offering some comfort to the cannabis industry. It outlined eight specific enforcement priorities for federal prosecutors operating in these states. These included preventing the distribution of marijuana to minors, preventing cannabis revenue from funding criminal enterprises, gangs, or cartels, and preventing cannabis from being used as a cover for other illegal activity. The memo also aimed to prevent violence and the use of firearms in the cannabis trade, as well as drugged driving and other adverse public health consequences associated with marijuana use.

The Cole Memo represented a significant shift in government priorities, acknowledging the legalisation of marijuana in certain states and the implementation of regulatory and enforcement systems to control the drug. This shift was first signalled in a 2009 memorandum from Deputy Attorney General David W. Ogden, directing U.S. Attorneys in the Western United States to prioritise state-compliant medical marijuana users. However, the Cole Memo took this a step further by providing specific guidance on enforcement and acknowledging the emergence of robust regulatory systems in some states.

Despite the Cole Memo's attempt to balance federal enforcement with state legalisation, it faced opposition and uncertainty under the Trump administration. Anti-legalisation groups lobbied for its revocation, and Attorney General Jeff Sessions eventually rescinded it in January 2018. Sessions' decision was criticised by some as an "assault on federalism", while others saw it as a justified reaction to the Obama Administration's use of executive actions. The rescission of the Cole Memo returned discretion to federal prosecutors, but it had little practical impact on federal prosecutions.

In February 2021, President Biden's Attorney General, Merrick Garland, testified before the Senate Judiciary Committee that he would reinstitute a version of the Cole Memorandum. He assured that the Justice Department under his leadership would not pursue cases against Americans complying with the laws in states that have legalised and effectively regulated marijuana. This statement provided some reassurance to the cannabis industry and indicated a potential return to the enforcement approach outlined in the original Cole Memo.

Congress has restricted federal law enforcement related to medical cannabis

The federal government's position on cannabis has remained largely unchanged since the 1970s. Marijuana and marijuana products are illegal and subject to criminal law enforcement through the Drug Enforcement Agency (DEA). However, several states have legalized cannabis for medical purposes, and some even permit its recreational use. This has created a number of challenges for consumers, regulators, law enforcement, and businesses.

In 2014, the Rohrabacher-Farr amendment was included in the spending bill. This amendment prohibits the Justice Department from spending funds to interfere with the implementation of state medical cannabis laws. It has been included in subsequent spending bills and must be renewed each fiscal year to remain in effect. The amendment demonstrates bipartisan support for a real federal cannabis policy change.

The Rohrabacher-Farr amendment is limited in scope, but there are two separate bills currently under discussion in Congress to legalize cannabis nationwide. The House has passed the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, which would end federal cannabis prohibition by removing it from the Controlled Substances Act. The Senate is working on a bipartisan measure, commonly referred to as the Cannabis Administration and Opportunity Act. Both bills aim to remove cannabis from the list of Schedule I drugs, propose a federal cannabis excise tax, and offer relief to those previously convicted of certain cannabis offenses.

In addition to these efforts, Congress has also included language in every omnibus spending bill since 2014, prohibiting the use of federal funds for the enforcement of the Controlled Substances Act by states with medical cannabis laws. This further restricts federal law enforcement related to medical cannabis and allows states with legalized marijuana to implement their own regulatory and enforcement systems.

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