Oxford University Press's
Academic Insights for the Thinking World

Marijuana legalization in the American states: recent developments and prospects

Although in the U.S. marijuana remains illegal under federal law, a number of states have legalized marijuana in some fashion. Sam Kamin, author of “The Battle of the Bulge: The Surprising Last Stand Against State Marijuana Legalization,” an article for the Summer 2015 Annual Review of American Federalism issue of Publius: The Journal of Federalism, agreed to answer several questions from John Dinan, editor of Publius, about recent developments in this area and the future of marijuana law reform in the United States.

*   *   *   *   *

John Dinan: How many states have legalized marijuana, whether for medical use or more broadly, and how have states undertaken these legalization efforts at a time when marijuana remains illegal under federal law?

Sam Kamin: Currently 23 states plus the District of Columbia had legalized marijuana for medical purposes and 4 states (Colorado, Washington, Alaska, and Oregon) as well as D.C. have gone further and legalized marijuana for adult use. Generally, states have done this through the initiative process rather than by way of legislation.

John Dinan: What has been the reaction of federal officials to state marijuana legalization measures, and how and why has the federal government’s position changed over time?

Sam Kamin: The federal government has announced a number of approaches to marijuana legalization over the last 6 years, finally adopting a ‘wait-and-see’ policy and indicating it does not plan to block implementation of state marijuana legalization measures. The Justice Department has announced eight criteria by which state experimentation with regulating marijuana will be judged. They include keeping marijuana out of the hands of children, keeping marijuana within the state’s borders, and keeping organized crime and other drug dealing away from regulated marijuana and so forth.

While the Obama administration has finally settled on a policy of tolerance with regard to marijuana regulation, with the prospect of a new president and attorney general taking office in early 2017, the current period of relative stability is only temporary.

Supreme court by skeeze. CC0 Public Domain via Pixabay
Supreme court by skeeze. CC0 Public Domain via Pixabay

John Dinan: What problems are caused by the current situation where marijuana is legal in a number of states but illegal under federal law, and why is this a source of continuing concern?

Sam Kamin: The problems are myriad. So long as marijuana remains a prohibited substance under federal law, all those who produce, sell, and use it are at risk of arrest, prosecution, imprisonment and asset forfeiture. Although these risks are remote at the moment, they color all decisions in this area. So, for example, marijuana businesses do not generally have access to banking services in the way other businesses do: fearing the threat of money laundering charges or asset forfeiture, banks are unwilling to do business with marijuana enterprises. Similarly, marijuana businesses face a daunting federal tax structure that requires them to pay tax but denies them nearly all deductions available to other businesses.

For the marijuana user, things are not much better. Given the uncertainty surrounding marijuana’s quasi-legal status, marijuana users risk their employment, government benefits, and parental rights if they choose to engage in conduct that is permitted under their state’s laws.

John Dinan: Describe the various lawsuits that have been filed challenging marijuana legalization in the states — who is bringing these challenges, and are they likely to succeed?

Sam Kamin: Marijuana regulation is currently being challenged in 3 sets of lawsuits in federal court. First, Oklahoma and Nebraska sued Colorado in the Supreme Court, claiming that marijuana leaving Colorado creates negative externalities in their state. Similarly, a group of Colorado and neighboring state sheriffs have sued the state, claiming that voters’ decision to repeal the Colorado marijuana prohibition places them in an unconstitutional bind where they must choose between their oath to the federal government and their oath to the state government. Finally, two private plaintiffs have sued the state and a number of businesses under the RICO statute, claiming financial harms as a result of the production and sale of marijuana adjacent to their properties.

For various reasons, I believe all of these suits are without merit. At bottom, the state of Colorado has the power to legalize marijuana and to permit its production and sale within its territory. While the state government can do nothing to prevent the federal government from enforcing federal law within the state, neither can the federal government force Colorado to prohibit marijuana, to enforce any laws it might have on the books criminalizing marijuana, or to keep its existing prohibitions on the books. The 10th Amendment’s anti-commandeering provision simply prevents the federal government from dictating policy to the states.

John Dinan: Looking ahead, what do you expect will happen in the next several years regarding marijuana law reform in the U.S.?

Sam Kamin: A tipping point is coming within the next several years. With more and more states implementing either medical marijuana or adult use laws, the time will soon be upon us when a sizable majority of Americans live in a state where marijuana is legal for some purposes. This will create an irresolvable tension with the continuing federal prohibition and will, I believe, spur elected leaders into action.

Headline image credit: Cannabis. CC0 via Pixabay.

Recent Comments

  1. Kenneth

    Spur to action, like legalization nationally? How can we TRUST a government that perpetrates a continued business stronghold over cannabis and for so many years. Yes, I don’t trust our Government. Why should I. The CCA is what the FEDS are using as a barometer. I heard the BIA with the DEA raided Indian lands in CA. Thank goodness, NOT!

Comments are closed.