US Dopers: Many States have legalized OR are considering legalizing the use of marijuana in one form of another for medicinal or recreational use. Maybe everything I was taught in school was wrong, but I thought no State could pass a law less strict than US law. Marijuana is still illegal at the Federal level, so how can States pass laws to legalize marijuana use?
Its a states rights issue. The states are saying the federal law is unconstitutional or doesn’t apply as long as they do not sell across state lines. The federal government doesn’t want to challenge that because they very well could lose.
They have not legalized it - they have changed the state laws so that it is not illegal under state law which means that state and local police will no longer arrest people for having a small amount of marijuana which used to be prohibited by state law. Federal law enforcement can still arrest and prosecute those violating Federal law - but the Feds never were in the habit of arresting people on the corner for possessing a small amount of marijuana and they aren’t going to start now.
@doreen is correct. That’s how it’s been in Alaska for decades. @Si_Amigo has an interesting point. Wickard v Filburn is thought by many to be bad law and one abused by Congress (anything being sold can affect anything else somewhere so everything falls under ICC therefore we can legislate it). It has been tempered by SCOTUS a few times so I’m sure Congress does not want to give SCOTUS a chance to overturn it completely. As a highjack, would this current SCOTUS overturn Wickard?
They haven’t and they can’t. There are essentially two parallel criminal justice systems in the United States – state and federal. Both the state and the federal governments have criminalized certain activities and while there is substantial overlap, there is certainly no requirement that there be. The vast majority of encounters with criminal law enforcement would be with state laws. And as a general matter, the federal government cannot compel the state to enforce federal laws.
If a state elects not to criminalize possession of a particular federally controlled substance, all that means that is that the state won’t prosecute you in state court for that crime (which is now no longer a crime). It has no effect on the federal law at all. But, as a practical matter, the run-of-the-mill drug dealer or user is not going to have a run in with federal narcotics agents.
I suppose it’s possible. But your first question should be: would the Court overrule Gonzales v. Raich? Only Thomas was on the Court that decided Raich (and dissented), but I think O’Connor’s dissent would be pretty persuasive to a number of the current justices.
What you guys are missing though us that many states haven’t just decriminalized marijuana, they’ve also regulated it and allowed it to be bought and sold in commercial properties, which you have to apply for a permit for, and pay specific taxes, etc.
States that have gone this route haven’t simply decriminalized marijuana, they’ve built a whole beaurocracy to deal with its legal trade.
If using Thomas’ dissent as a model, then it would effectively overrule Wickard.
The Department of Health in my state (Pennsylvania) has determined that I am medically helped by using cannabis. Who am I to argue?
Not missing it ,really. It’s not illegal under state law, but it’s not accurate to say it’s been “legalized” because it’s still illegal under Federal law.
Do you not agree that there is a wide gulf between saying “We will turn a blind eye if you do this” to “we will regulate and tax the way you do this”?
After reading Babale’s response, the OP may well wonder “So … something is stopping federal agents from running roughshod over (say) Colorado’s dispensaries – but what is that something?”
Presumably, a DEA agent with a wild hair is perfectly within their jurisdiction to summarily close down any state-legal dispensary of their choosing – by showing up and arresting the principals and employees. Yet this never (?) happens. So this all seems to be more complicated than just what’s legal/illegal on the books.
Sure there is- but I didn’t see anyone who said states were just turning a blind eye. In fact, I think it’s inaccurate to say states are turning a blind eye, when they have changed the laws so that pot is not illegal - there’s no reason to pretend not to notice something that doesn’t violate the laws you enforce. It would be more accurate to say the Feds turn a blind eye on the dispensaries they haven’t shut down - although, in truth, I suspect that’s a matter of priorities rather than turning a blind eye.
Unfortunately, because banks are regulated by federal law, legal dispensaries have trouble difficulty accessing banking services, including taking credit card payments. The one near me helpfully has an ATM in the lobby.
Which brings me back to states rights and the legality of the federal law being a question the feds don’t want to challenge.
There have been arrests of people pushing the boundaries in California. Eddy Lepp served 8 years of a ten year sentence for growing.
That was more than 17 years ago. Times change. And it was for running a massive growth operation.
Most places that I know of that eventually legalized cannabis earlier underwent a culture change where law enforcement was no longer enforcing cannabis laws, at least not against those with small amounts for personal use. That’s because culture change and changes in public perception usually happen first, and changes in the law lag behind. I suspect that this is what we’re seeing now at the federal level. Biden has talked about changing the federal law, or at the very least removing cannabis from the ridiculous designation of a Schedule 1 narcotic, but it’s a slow-moving process. In the meantime, I doubt that the DEA or any other federal agency empowered to enforce federal law has any interest in cannabis prosecutions, especially when they have real drug problems to deal with.
Well, as with many laws, it is more complicated. But it’s not a question of states overruling federal law; it’s about federal allocation of enforcement priorities of federal laws.
First, law enforcement is an executive function subject to the policies of the executive. Under the Obama Administration (and the 2013 Cole Memorandum), DOJ was largely prohibited from enforcing the Controlled Substances Act for marijuana. The Cole Memorandum was rescinded by AG Sessions in January 2018 (although, I don’t get the sense that there was a substantial increase in marijuana prosecutions thereafter). AG Garland indicated that he would reinstate the Cole Memorandum during his confirmation hearings (although I’m not sure if he ever formally did).
Second, even if it weren’t subject to political whims, the federal government has finite resources. The DEA agent (wild hair or otherwise) answers to a boss who answers to a boss, etc. and the agency’s need to allocate its resources somehow. Obviously (for better or worse), CSA enforcement against marijuana dispensaries does not appear to be a high priority.
Here in CA you can use an app to get the stuff delivered to your door, paying with card online. I have also heard of the bank issue, not sure how they get around it.
That is one reasons the state of Washington is considering starting a state chartered bank. Besides offering customers a way to pay without cash, it will allow pot shop to pay their taxes without hauling bundles of cash to state offices that collect tax money. From what I was told, there are still a couple obstacles in the way of this happening. With the rash of pot shop robberies in the state this year, it has now become a safety issue too.
The state of California was aware of Lepp’s grow and had no problems with it. He wasn’t making any money with the project. When the DEA swooped in, people were shocked.