Over the course of the past two decades, cannabis legalization efforts have brought the United States to a point where the laws of individual states and those of the federal government have come to a bit of a standoff.
According to a 2016 Gallup poll, public support for legal cannabis use had reached 60% in the U.S. that year; the highest percentage of endorsement that the organization had recorded for legalization over a 47-year period starting in 1969 when only 12% thought marijuana should be legal.
During Prohibition, Support For Cannabis Grows
In October, 2017, Gallup posted the results of a new poll which showed that support for cannabis legalization had increased to 64% since the previous year’s survey.
In light of ever-increasing public endorsement of legal marijuana, when news that Attorney General Jeff Sessions had replaced the Cole Memo with a document of his own announcing a return to the rule of federal law for cannabis prosecution, it naturally prompted widespread backlash across the internet, the country, and in Congress.
Following Sessions’ announcement, lawmakers began constructing new legislation to deal with the ever-present dilemma of conflicting state and federal marijuana laws.
On January 12, 2018, a group of 67 U.S. Representatives signed a letter that was sent from Tom McClintock (R-CA) and Jared Polis (D-CO) to Speaker Paul Ryan, Minority Leader Nancy Pelosi, House Appropriations Chairman Rodney Frelinghuysen, and Ranking Member Nita Lowey.
The representatives begin the letter by addressing DOJ funding in the 2018 year; “Specifically, we are concerned with several attempts to apply federal law upon commerce related to cannabis that is conducted entirely within the boundaries of states that have legalized such commerce.”
The letter goes on to acknowledge the federal government’s power to regulate interstate commerce but notes that in states with legal cannabis, intrastate business is their sole focus and federal agencies should not interfere with them.
Members Of Congress Endorse The McClintock-Polis Amendment
They admit that their proposed funding language doesn’t do anything to diminish the power of the federal government, but say that it respects the Constitutional rights of individual states to “regulate commerce within their own borders.”
At the letter’s closing, the representatives include the McClintock-Polis Amendment which is almost identical to the Rohrabacher-Blumenauer Amendment. The primary difference between the two is that the word ‘medical’ is missing before the word ‘marijuana.’
Under the proposed amendment, the DOJ defunding tactics that have shielded the medical cannabis states from federal interference would also extend to those who choose to legalize marijuana for recreational purposes as well.
But the McClintock-Polis Amendment isn’t the only document being utilized to try and fix the United States’ cannabis law quandary; there are also a number of other bills that are aimed at tackling the problem.
Rep Barbara Lee (D-CA)
On January 11, 2018, Representative Barbara Lee (D-CA) introduced a similar piece of legislation called the Restraining Excessive Federal Enforcement & Regulations of Cannabis Act of 2018, or the REFER Act of 2018 (HR 4779).
The bill would prevent any federal agency from using any funds made available by any Act of Congress to prevent a state or local government from implementing and operating cannabis commerce within their borders.
Under the legislation, federal agencies would not be able to;
“detain, prosecute, sentence, or initiate civil proceedings against an individual, business, or property, that is involved in the cultivation, distribution, possession, dispensation or use of cannabis, in accordance with the law or regulation of the State or unit of local government in which the individual is located…”
Additionally, the bill would also protect financial institutions from being penalized for doing business with anyone involved in the cannabis industry as long as they comply with state law. Banks’ reluctance to work with the marijuana businesses has forced the industry to operate primarily on a cash-based system.
And even as new legislation is being introduced to end the federal prohibition of cannabis, other related bills gained new sponsors in the wake of Sessions’ memorandum rescission decision.
Representative Dana Rohrabacher (R-CA) introduced HR 975, the Respect State Marijuana Laws Act of 2017 on February 7, 2017. The bill had twenty-four co-sponsors before the new year but gained eleven new ones following the ‘return to the rule of law’ announcement from the DOJ.
Rohrabacher’s bill would amend the Controlled Substances Act (CSA) to;
“provide that the Act’s regulatory controls and administrative, civil, and criminal penalties do not apply to a person who produces, possesses, distributes, dispenses, administers, or delivers marijuana in compliance with state laws.”
HR 1227, the Ending Federal Marijuana Prohibition Act of 2017 was introduced by Representative Garrett Thomas (R-VA) in March of last year and amends the CSA to exclude marijuana from criminal penalties.
As written, the bill would remove cannabis from the Schedule I category and eliminates the chance of prosecution for engaging in lawful marijuana activities within the country, though it would make it a crime to knowingly transport or ship cannabis to a state where it is not legal.
Four new representative co-sponsors, Michael Capuano, (D-MA), Barbara Lee, Zoe Lofgren (D-CA), and Jerry McNerney (D-CA) added their names to the bill this year for a current total of nineteen.
On April 24, 2017, Jared Polis introduced The Regulate Marijuana Like Alcohol Act (HR 1841) which would remove cannabis from the CSA entirely and give the Food and Drug Administration the same authority over cannabis that it retains over alcohol. Under the law, duties previously assigned to the DEA would transfer to the ATF.
Rep Jared Polis (D-CO)
The bill would also rename the ATF to the Bureau of Alcohol, Tobacco, Marijuana, Firearms and Explosives, and the Alcohol and Tobacco Tax and Trade Bureau would change to the Alcohol, Tobacco, and Marijuana Tax and Trade Bureau. There are currently twenty-one co-sponsors attached to HR 1841.
On January 8, HB 1823, the Marijuana Revenue and Regulation Act gained one new co-sponsor, Ruben Gallego (D-AZ) to bring the measure’s co-sponsor count to nine. The bill was introduced by Earl Blumenauer (D-OR) on March 30, 2017, and orders the DOJ to remove cannabis from the CSA entirely.
The bill would amend the Internal Revenue Code to place an excise tax on cannabis produced in the United States as well as on imported marijuana products. An occupational tax would also be imposed on production facilities and export warehouses, though industrial hemp, marijuana used for research, and medical cannabis would be exempt.
The measure would also establish penalties for marijuana infractions and prohibit “the sale of more than one ounce of marijuana in any single transaction.”
On Tuesday, January 16, California Attorney General Xavier Becerra along with a bipartisan group of eighteen other state AG’s sent a letter to Congress asking them to make provisions for the growing cannabis industry that exists in twenty-nine states.
They write that even though federal and state laws are not in-step;
“the marijuana industry continues to grow rapidly. Industry analysts report that sales grew by 30% to $6.7 billion in 2016 and expect those totals to exceed $20 billion by 2021.”
To address these challenges, they write;
“we are requesting legislation that would provide a safe harbor for depository institutions that provide a financial product or service to a covered business in a state that has implemented laws and regulations that ensure accountability in the marijuana industry such as the SAFE Banking Act (S. 1152 and H.R. 2215) or similar legislation.”
Enacting HR 2215, they say, would bring billions of dollars in transactions into the banking sector, allow law enforcement to monitor them, and result in higher revenue from enforceable tax requirement compliance.
While efforts to legalize cannabis in a growing number of locales around the country have not slowed, there is now more support on a federal level for the protection of individual state rights to do so than ever before.
But solving marijuana prohibition beyond the state level is the key to fixing the problem for the country as a whole.
As long as cannabis is federally illegal, there will always be a conflict with the states, even if all fifty of them legalize it; though it will take more than an attorney general’s memorandum to turn the tide either way.
While some loose guidelines may have helped change the overall attitude of the DOJ in regards to marijuana prosecutions for a period, it rests on the shoulders of Congressional lawmakers to finally put an end to the mismatch between state and federal cannabis law once and for all.
