Despite Ballot Results, Barriers Remain for Marijuana Legalization

By Kyla Eastling (CMC ’18)

A recent Gallup poll found that 60% of Americans support the legalization of marijuana (cannabis). This figure closely parallels the findings of other studies that show support for legalization has reached a solid majority. On November 8th, ballot results across the country reflected this shift. California, along with three other states, legalized recreational use of cannabis. Four other states also passed measures to allow medical marijuana use. This resounding public support, however, may form a misleading picture of easy and legal access to marijuana in the states where it is newly legalized. In August, the DEA elected to maintain marijuana’s classification as a Schedule I substance, which keeps “any marijuana possession, cultivation, or use… a federal crime.” Enforcement of the federal cannabis laws has remained low under the Obama administration, but this enforcement is ultimately subject to the executive branch’s discretion. As such, the outlook for legal marijuana use in the twenty-six states that have some level of legalization remains unclear as we await a more concrete picture from President-elect Trump’s administration regarding the enforcement of federal cannabis laws.

Voting to legalize marijuana at the state level is just the first step of the process to fully implement legalization. Counties and local governments also have further discretion in regulating the sales and consumption of cannabis, which can effectively prohibit any use within the locality. If the measures are passed, the regulatory laws are usually shaped during the rule-making phase over the next year or so. Some of these regulations can include location specifications for dispensaries or packaging requirements to prevent children from accidentally consuming the cannabis. These regulations can burden businesses selling marijuana. For the most part, however, if one lives in a state with legalized medical marijuana and complies with local regulations, it is relatively obtainable. The regulations facing marijuana in states where it has been legalized largely exist as a necessary measure to avoid federal intervention, since marijuana is still an illegal Schedule I drug.

Even if they operate in a state with low levels of marijuana regulations, businesses selling marijuana face additional obstacles on the federal level. For example, these businesses cannot use federal tax breaks, cannot file for bankruptcy, and are barred from other benefits that small business owners generally have access to. Furthermore, businesses within these states face possible threats in the form of racketeering lawsuits. The Racketeer Influenced and Corrupt Organizations Act (RICO), is a federal act that aims to keep organized crime out of business. Two RICO cases were filed in Colorado, a state where recreational marijuana is legal, this year against marijuana businesses, their respective banks, and their accounting companies. The plaintiffs argued that doing business with a company that sells a federally prohibited substance constitutes racketeering. Though both cases were dropped, and it is legally unclear if these claims would be affirmed in court, they pose a possible threat to businesses in these states.

The federal legal classification of drugs is outlined in the Controlled Substances Act (CSA) of 1970, and a significant portion of CSA enforcement is carried out by the Drug Enforcement Agency (DEA) under the Department of Justice. Though the president is the highest authority of any government agency, the DEA reports directly to the Deputy Attorney General who reports to the Attorney General. Thus, the Deputy Attorney General does not control which substances are included in Schedule I of the CSA, but he or she can dictate the degree of enforcement. In recent years, Deputy Attorney Generals David Ogden and James Cole opted for a relaxed enforcement of marijuana laws. They both emphasized the low priority of targeting individual recreational users and medical users, citing the expenses involved with enforcement and the higher priority of “larger-scale marijuana growers and dispensaries.” As such, many states with recreational and medical marijuana laws have not seen much pushback from the federal government. Additionally, Congress passed a budget rider in 2014 which prevents the Justice Department from intervening with state medical marijuana laws using federal funding.

The Justice Department, however, maintains its ability to legally challenge state laws for both medical and recreational marijuana, at its discretion. Additionally, Trump’s nominee for Attorney General is Alabama Senator Jeff Sessions, who maintains a position against any marijuana use, even in medical cases. Though this does not guarantee harsh enforcement, this nomination is troubling for states with legalized cannabis.

Ultimately, though individual cannabis users are unlikely to be prosecuted after Trump takes office, the legal consequences of state marijuana laws for businesses, cannabis producers, and dispensaries remain up in the air. This issue raises important questions about federalism and the power of states to create policies they deem beneficial for public health. As an industry that is projected to be worth $22 billion by 2020, it is worth watching how these events unfold and the effects they will have on all parties involved.


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