Marijuana Laws: Federal Vs. State Power Struggle

Marijuana laws vary between states, with 23 states and Washington, D.C., legalizing the drug for recreational use and 37 states allowing medicinal use for specific patients. However, marijuana is still classified as a Schedule I drug under federal law, which creates a complex dynamic between state and federal legislation. The federal government's stance on marijuana has significant implications for individuals and businesses operating within the state-legal marijuana industry, impacting areas such as criminal liability, commerce, and capital. Understanding the federal government's role in deciding marijuana laws in each state is crucial for navigating this evolving legal landscape.

The Supremacy Clause of the US Constitution

The Supremacy Clause was introduced as part of the New Jersey Plan during the Federal Convention of 1787. It passed unanimously when it was first put up for a motion by Luther Martin on July 17. The Supremacy Clause was a response to the lack of a similar provision in the Articles of Confederation, which governed the United States from 1781 to 1789. The absence of such a provision meant that federal statutes did not bind state courts in the absence of implementing state legislation.

The Supremacy Clause assumes the underlying priority of federal authority, provided that authority is expressed in the Constitution. This means that federal statutes and treaties must be within the parameters of the Constitution and not violate constitutional limits on federal power, such as the Bill of Rights. The Supremacy Clause is considered a cornerstone of the United States' federal political structure, playing a significant role in establishing a robust role for the federal government in managing the nation's affairs.

While the Supremacy Clause affirms federal supremacy, the Tenth Amendment to the United States Constitution limits what state laws can be federally preempted. The Tenth Amendment's "anti-commandeering rule" prohibits Congress from forcing states to mirror or enforce federal policies, particularly in areas of state authority. This dynamic results in a system of dual sovereignty, where states can serve as "laboratories of democracy," experimenting with policies that may contradict federal law.

The interplay between the Supremacy Clause and the Tenth Amendment has significant implications for marijuana laws. While marijuana possession and distribution are federal crimes under the Controlled Substances Act (CSA), the federal government has not actively interfered with state-legal marijuana providers in over a decade. This non-enforcement practice is supported by polls showing that over 70% of Americans believe the federal government should not use its resources to interfere with state-legal marijuana businesses. Additionally, the Department of Justice's 2013 Cole Memo formalized a policy of non-interference unless specific federal interests are implicated.

The Tenth Amendment's anti-commandeering rule

The Tenth Amendment to the US Constitution states that:

> The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This amendment limits what state laws can be federally preempted. While the federal government can enforce its marijuana laws, requiring state agents to enforce these laws is unconstitutional, as per the Tenth Amendment's anti-commandeering rule. This rule prohibits Congress from forcing states to mirror or enforce federal policies.

The anti-commandeering rule provides a powerful tool to undermine overreaching, unconstitutional federal power. It ensures a healthy balance of power between the states and the federal government, promotes political accountability, and prevents Congress from shifting the costs of regulation to the states.

In 2018, the US Supreme Court overturned a federal law, the Professional and Amateur Sports Protection Act (PASPA), that sought to prohibit states from authorizing sports gambling schemes. The Court held that this law violated the anti-commandeering rule by putting state legislatures under the direct control of Congress.

While the federal government continues to enforce marijuana prohibition, state governments regularly tax and regulate cannabis production and sales. At least 41 states have legalized possession, manufacture, and sale of at least some cannabis products that are federally illegal. The Department of Justice has not targeted state-legal marijuana providers in over a decade, formalizing this policy of non-interference in the 2013 Cole Memo. While the memo was rescinded in 2018, the non-enforcement practice continued under the Trump and Biden Administrations.

In 2021, the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act was reintroduced, which, if passed, would end the federal prohibition of cannabis by removing it from the Controlled Substances Act and ending criminal penalties under federal law.

Federal non-interference in state-legal marijuana businesses

Marijuana is a controlled substance under federal law, like cocaine or heroin. It is classified as a Schedule I drug with a high potential for abuse and little to no medical benefit. Despite the liberalization of state laws, marijuana remains illegal at the federal level. This conflict between federal and state laws has led to a situation where individuals complying with state law may simultaneously be violating federal law.

The U.S. system of government is one of dual sovereignty, with Congress never intending to preempt state drug laws. The Tenth Amendment to the U.S. Constitution prevents Congress from forcing states to mirror or enforce federal policies. While federal law creates challenges and injustices, it does not stand in the way of states' legalization for adults' or medical use. The federal government is free to enforce its marijuana laws, but requiring state agents to do so is unconstitutional. The federal government has not targeted state-legal marijuana providers in over a decade, with this policy of non-interference formalized in the 2013 Cole Memo. While the memo was rescinded by Attorney General Jeff Sessions in 2018, the non-enforcement practice continued under the Trump administration and has been maintained under President Biden, who issued a blanket pardon for simple possession of marijuana in December 2023.

The conflict between federal and state laws has caused issues beyond uncertainty about criminal liability in the state-legal marijuana industry, particularly in commerce and capital. Banks are generally unwilling to do business with marijuana companies due to concerns about violating federal anti-money laundering laws, leaving many marijuana businesses as cash-only operations that are vulnerable to theft. Federal law also prohibits marijuana from crossing state lines, even between states where its sale is legal, causing an imbalance in the markets.

While federal agencies are generally reluctant to charge individuals with cannabis-related crimes unless associated with larger organized crime, federal law enforcement has several priority areas they will continue to pursue. These include preventing the distribution of cannabis to minors, preventing cannabis-impaired driving, and preventing cannabis possession or use on federal property. Federal law also prohibits state medical cannabis laws from being implemented, but Congress has approved an annual budget amendment since 2014, known as the Rohrabacher-Farr amendment, that prohibits the Department of Justice from using its funds to interfere with these laws.

The Controlled Substances Act (CSA)

The CSA was established in 1969 by President Richard Nixon, who aimed to create a comprehensive new measure to address narcotic and dangerous drug problems at the federal level. The act combined existing federal drug laws and expanded their scope, changing the nature of federal drug law policies and increasing federal law enforcement pertaining to controlled substances.

The CSA consists of two subchapters. Subchapter I defines Schedules I-V, lists chemicals used in the manufacture of controlled substances, and differentiates between lawful and unlawful manufacturing, distribution, and possession of controlled substances. Schedule I drugs, such as marijuana, have a high potential for abuse and currently, no accepted medical use in treatment in the United States. Schedule II drugs also have a high potential for abuse but differ in that they have a currently accepted medical use in treatment in the United States or with severe restrictions.

The CSA has been amended several times to address specific issues related to controlled substances. For example, the 2010 Secure and Responsible Drug Disposal Act allowed pharmacies to operate take-back programs for controlled substance medications in response to the opioid crisis. In 2017, the Protecting Patient Access to Emergency Medications Act (PPAEMA) amended the CSA to include DEA registration for Emergency Medical Service (EMS) agencies and requirements for the maintenance and administration of controlled substances used by EMS agencies.

While the CSA establishes federal drug control policies, it is important to note that the federal government has not interfered with state-legal marijuana providers in over a decade. This non-interference policy was formalized in the 2013 Cole Memo, which clarified that states with legal cannabis use are responsible for establishing strict regulatory systems. The federal government's enforcement priorities include preventing the distribution of cannabis to minors, preventing cannabis revenue from funding criminal enterprises, and stopping drugged driving, among others.

There have been legislative efforts to end the federal prohibition of cannabis by removing it from the CSA. The Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, reintroduced in 2021, aims to remove cannabis from the CSA and end criminal penalties under federal law. While the U.S. House of Representatives voted in favor of the MORE Act in 2020, the bill did not advance in the Senate.

The war on cannabis

The United States federal government has long classified marijuana as a Schedule I drug, grouping it with heroin and cocaine, and asserting that it has a high potential for abuse and little to no medical benefit. This classification has resulted in a "war on cannabis", with federal law enforcement targeting individuals and businesses that possess, produce, or sell marijuana. However, in recent years, an increasing number of states have passed legislation to legalize or decriminalize marijuana, creating a conflict between state and federal laws.

While the federal government continues to enforce marijuana prohibition, state governments have been regulating and taxing cannabis production and sales. This discrepancy in laws has led to confusion and challenges for consumers, regulators, law enforcement, and businesses. For example, individuals who possess marijuana for personal use may be adhering to their state's laws but could still face criminal charges from federal law enforcement if they cross state lines.

The Tenth Amendment of the United States Constitution generally delegates police powers to the states, allowing them to act as "laboratories of democracy". This means that states can decide to legalize or decriminalize marijuana, and the federal government cannot force them to mirror or enforce federal policies. The Department of Justice's 2013 Cole Memo formalized a policy of non-interference with state-legal marijuana businesses, as long as certain enforcement areas were addressed, such as preventing the distribution of cannabis to minors and preventing cannabis-related violence and public health issues.

However, in 2018, under the Trump administration, the Cole Memo was rescinded, and federal prosecutors were authorized to pursue criminal cases when state and federal marijuana laws conflicted. Despite this, federal prosecutions of individuals possessing marijuana have remained rare, with federal law enforcement focusing on other priorities. In 2021, the number of federal prosecutions for marijuana trafficking declined to less than 1,000, and the Biden administration has continued the policy of non-interference.

To address the conflict between state and federal laws, there have been legislative efforts to end the war on cannabis. The Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, if enacted, would remove cannabis from the Controlled Substances Act and end criminal penalties under federal law. This act passed the House of Representatives in 2020 but did not advance in the Senate. Other legislative efforts include the SAFE Banking Act, which aims to address the challenges faced by cannabis-related businesses in accessing financial services.

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