In the twenty-first century, marijuana policy has been one of the primary arenas for determining the appropriate balance of power between the federal government and the states. This is because marijuana occupies a unique place in the American legal landscape – it is the only substance or conduct that, while prohibited by the federal government, is increasingly authorized, regulated, and taxed under state law. Marijuana policy thus provides a unique prism through which to view matters of federalism and states’ rights.
Since 1970, marijuana has been listed as a Schedule I drug under the federal Controlled Substances Act (CSA). Schedule I drugs are those determined to have no approved medical use and a high likelihood of abuse. They cannot be prescribed by a federally licensed doctor or distributed through pharmacies. The manufacture, distribution, and possession are all made criminal by federal law which impose significant punishments for large-scale violations. The Supreme Court affirmed the power of Congress to regulate (or prohibit entirely) intrastate marijuana production and possession under the Commerce Clause. Gonzales v. Raich (2005).
While state law traditionally mirrored the CSA’s treatment of marijuana, in the 1990’s some states began to create exceptions to their criminal laws for those using marijuana medicinally or for those helping patients to do so. So-called medical marijuana laws were obviously inconsistent with the federal prohibition in that they permitted conduct criminalized by the CSA and even those actin in compliance with state law could be prosecuted under the CSA. Oakland v. OCBC (2000). Nonetheless, the number of states passing medical marijuana laws continued to increase, setting up a confrontation with federal policy.
|State||Year Medical Law Passed||Year Recreational Law Passed|
In 2009 the Obama administration issued the so-called Ogden memorandum, designed to guide United States Attorneys around the country in responding to marijuana law reform in their states. (Ogden Memo (2009)). While emphasizing that marijuana remained illegal at the federal level, the Ogden memo stated that, generally speaking, enforcing the CSA against those using marijuana medically was a poor use of scarce resources. This memo had the unintended effect of accelerating the momentum of marijuana law reform as it appeared to signal a hands-off policy from Washington. Although a follow-up memorandum in 2011 attempted to scale back federal deference to state marijuana law reform (Cole Memo (2011)), it was too late. In 2012 Colorado and Washington became the first two states in the nation to seek to tax and regulate marijuana for all adults, not just for medical patients.
Following months of uncertainty the Obama administration ultimately elected to stay on the sidelines and allow state experimentations with marijuana law reform to continue. It stated that so long as state marijuana regulations were robust and dealt effectively with eight federal priorities, those in compliance with state law – whether recreational or medical – would not be the targets of federal prosecution. In 2014 Congress enacted a spending rider that has been interpreted to prevent the Department of Justice from spending appropriated funds to prosecute those individuals in compliance with state medical marijuana laws.
Although this appears to have resolved matters, the tension between state and federal marijuana laws has not disappeared. The specter of federal enforcement remains real, as was demonstrated in early 2018 when Attorney General Jeff Sessions rescinded the previous administration’s policy of deference to state regulation of marijuana. But even absent federal enforcement, the states are far from free to put their pro-marijuana policies into operation. The continuing federal prohibition casts a wide shadow in the states. Because all marijuana conduct is illegal, federally-regulated banks are generally unwilling to deal in the proceeds of marijuana transactions, making marijuana a multi-billion dollar cash business. Furthermore, those who would use marijuana in compliance with state law risk losing their jobs, families, and government benefits because they are engaging in conduct that federal law continues to view as criminal.
Marijuana policy, then, remains a standoff between the state and federal governments. The states cannot be prohibited from liberalizing their own laws and cannot be compelled to help the federal government enforce its own marijuana laws. But neither can the states protect their citizens from the threat of federal enforcement or the collateral consequences of federal marijuana prohibition. And while the federal government has the authority to prohibit marijuana nationally and to enforce its laws regardless of state laws to the contrary, it lacks the resources, and perhaps the will, to take on an issue increasingly popular throughout the country and across the political divide.
It will thus require legislative change to solve this problem. Unless or until federal law is harmonized with the view of more than half the states, marijuana policy will remain a federalism flashpoint.
United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001); Gonzales v. Raich, 545 U.S. 1 (2005); Memorandum from David W. Ogden, Deputy Attorney Gen., U.S. Dep’t of Just., on Investigating and Prosecutions in States Authorizing the Med. Use of Marijuana (Oct. 19, 2009), available at http:// www.justice.gov/opa/documents/medical-marijuana.pdf (Ogden Memo); Memorandum from James M. Cole, Deputy Attorney Gen., U.S. Dep’t of Just., on Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Med. Use 1 (June 29, 2011), available at http:// www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (Cole Memo); Memorandum for U.S. Attorneys from James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Enforcement, August 29, 2013, available athttp://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (Cole Memo II).