Federal Marijuana Laws: Overriding State Powers?

Marijuana legalization in the US has been a contentious issue, with a growing number of states legalizing its use, sale, and cultivation, despite federal laws prohibiting it. This has led to a complex legal situation where individuals and businesses must navigate conflicting state and federal laws. While the federal government has the power to enforce its marijuana laws, the extent to which it can override state laws is limited by the Tenth Amendment and the practical constraints of resources and public opinion. The federal government's approach has also varied depending on the administration in power, with some taking a more hands-off approach than others. This situation has resulted in an awkward stalemate, with the federal government neither supporting nor actively enforcing its laws against cannabis regulations in states that have legalized it.

Can Feds Override State Marijuana Laws?

Federal law supersedes state law

Marijuana possession and distribution are federal crimes under the Controlled Substances Act (CSA) and the Supremacy Clause of the United States Constitution. The Supremacy Clause states that federal law is the "supreme Law of the Land". However, the US system of government is one of dual sovereignty, and the 10th Amendment prevents Congress from forcing states to mirror or enforce federal policies. While federal law creates challenges and injustices, it does not prevent states from legalizing cannabis for adults or medical use.

The CSA only preempts state laws under very limited circumstances. According to 21 U.S.C. 903, the CSA does not intend to preempt the field of drug laws unless there is a "positive conflict" between state and federal law, making it impossible to comply with both. Courts have generally held that a state law is only preempted by the CSA if it is impossible to comply with both state and federal law or if the state law stands as an obstacle to the CSA.

The Tenth Amendment's "anti-commandeering rule" prohibits Congress from requiring states to enforce federal drug laws. In 2018, the US Supreme Court overturned a federal law, PASPA, which sought to prohibit states from authorizing sports gambling, citing a violation of the anticommandeering rule. While this ruling did not involve cannabis regulation, the same principle would apply to any federal attempt to prohibit states from legalizing cannabis.

The federal government has issued conflicting statements and policies regarding marijuana enforcement. In 2013, the Department of Justice issued the Cole memo, clarifying that state-legalized marijuana sales remained illegal under federal law but advising federal prosecutors to prioritize other areas of enforcement. However, in 2018, Attorney General Jeff Sessions rescinded the Cole memo, leaving federal policy uncertain. The Trump administration suggested it would take a harder line on marijuana enforcement, but no significant changes were made during its time in office.

Federal government non-interference

Marijuana is a controlled substance under federal law, like cocaine or heroin, and is classified as a Schedule I Drug. This means that it is treated as one of the most serious and deadly drugs. Marijuana possession and distribution are federal crimes under the Controlled Substances Act (CSA) and the Supremacy Clause of the US Constitution, which provides that federal law is the "supreme Law of the Land".

However, the US system of government is one of dual sovereignty, and the 10th Amendment prevents Congress from forcing states to mirror or enforce federal policies. While federal law does create challenges and injustices, it does not stand in the way of states' legalization for adults' or medical use. In fact, the Department of Justice (DOJ) has not targeted state-legal marijuana providers in over a decade. This policy of non-interference was formalized in the Department of Justice’s 2013 Cole Memo, which advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide “robust” regulation. While the Cole Memo was rescinded by then-Attorney General Jeff Sessions in 2018, the non-enforcement practice continued for the remainder of Trump’s term and under the Biden Administration.

The federal government has never alleged in court that federal laws preempt state medical marijuana or legalization and regulation laws. In fact, the DOJ argued in favor of dismissing a lawsuit claiming Arizona’s medical marijuana law was preempted. That suit was dismissed. While the federal government is free to enforce its own marijuana laws, requiring state agents to enforce federal laws is unconstitutional commandeering of a state’s resources.

Additionally, Congress has put limits on federal law enforcement related to medical cannabis, and personal possession cases at the federal level are rare. Since 2014, Congress has approved a budget amendment that prohibits the DOJ from using its funds to prevent states from implementing their medical marijuana laws. Known as the Rohrabacher-Farr amendment, this legislation must be acted on each year to keep it in place, and Congress has consistently renewed it. As a result, state medical cannabis laws have suffered little federal interference.

Marijuana as a Schedule 1 drug

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. Schedule I drugs are defined as substances with "no currently accepted medical use and a high potential for abuse". Other Schedule I drugs include heroin, LSD, ecstasy, and peyote. As a Schedule I drug, marijuana is the only category of controlled substance that cannot be prescribed by a physician.

The classification of marijuana as a Schedule I drug has been the subject of much debate and legal challenges. In 2015, a bill was introduced to remove marijuana from all schedules of controlled substances, but it died when no further action was taken. In 2016, the DEA rejected calls to reschedule marijuana, but indicated an increase in availability for research. The majority of public comments in 2024 supported descheduling, decriminalizing, or legalizing marijuana at the federal level.

Despite the federal classification, many states have taken steps to legalize marijuana for medical or recreational use. As of 2023, eight states have voted to legalize recreational marijuana, 29 states have legalized medical marijuana, and 21 states have decriminalized the drug. This has created a conflict between state and federal laws, as addressed by the Supremacy Clause of the US Constitution, which states that federal law supersedes state law in cases of conflict.

However, the federal government has largely taken a hands-off approach to enforcing marijuana laws in states that have legalized it. In 2013, the Department of Justice issued the Cole memo, which advised federal prosecutors to not prioritize marijuana enforcement in states with "robust" regulation. While the Cole memo was rescinded in 2018, the current policy of the Department of Justice appears to reflect the memo's guidelines. The federal government's position is likely due to the fact that states do not prevent federal authorities from enforcing federal marijuana laws, and state workers are not directly involved in the cultivation or sales of marijuana.

State sovereignty

The United States system of government is one of dual sovereignty, with state laws applying only to citizens within a particular state, and federal law applying to all US citizens. The area of law that addresses possible conflict between state and federal laws is referred to as the Supremacy Clause of the US Constitution, which includes the doctrine of "preemption", stating that federal law supersedes state law.

Despite marijuana being illegal under federal law as a Schedule 1 drug, several states have passed laws to legalize it for medical or recreational use. The federal government cannot require states to keep marijuana illegal, and it cannot require state agents to enforce federal laws—this would be unconstitutional commandeering of a state's resources. The Tenth Amendment's "anti-commandeering rule" prohibits Congress from forcing states to mirror or enforce federal policies.

The Department of Justice's Cole memo, released in 2013, advised federal prosecutors not to prioritize marijuana enforcement unless states failed to provide "robust" regulation. However, Attorney General Jeff Sessions rescinded that memo in 2018, leaving federal policy uncertain. While the federal government can enforce its marijuana laws, it has not stopped states from passing their own legislation.

The result is a stalemate, where the federal government does not support cannabis regulation, but also does not push back through enforcement or preemption actions. This situation has led to regulatory policies that continue to evolve as more states are added, creating multi-billion dollar industries.

Federal enforcement

Marijuana is illegal under federal law as a Schedule 1 drug, defined as having "no currently accepted medical use and a high potential for abuse". Despite this, many states have legalized marijuana for medical or recreational use, creating a conflict between state and federal laws.

The Supremacy Clause of the US Constitution, which includes the doctrine of "preemption", states that federal law supersedes state law in cases of conflicting laws. However, the federal government has generally taken the position that state regulatory activity does not violate the Supremacy Clause, as states do not prevent federal authorities from enforcing their laws, and state workers are not directly involved in cultivation or sales.

The Department of Justice's 2013 Cole Memo advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide robust regulation. The memo outlined specific priorities for federal law enforcement, such as targeting marijuana revenue that funds gangs or supports distribution to minors. While the Cole Memo was rescinded by Attorney General Jeff Sessions in 2018, the policy of non-enforcement has continued in practice.

The Tenth Amendment limits what state laws can be federally preempted, and requiring state agents to enforce federal marijuana laws would be unconstitutional commandeering of a state's resources. The federal government has limited resources to investigate and prosecute federal drug laws, and individual federal prosecutors have discretion in pursuing cases. As a result, federal prosecutions of individuals possessing marijuana are rare, while businesses that sell marijuana may face criminal investigation and prosecution.

While federal law enforcement has the authority to override state marijuana laws, they have generally chosen to prioritize other areas, allowing states to implement their own regulations without interference. This has resulted in an awkward stalemate, with the federal government neither supporting nor actively enforcing cannabis regulations.

Frequently asked questions