This is part of an ongoing series where LXBN members
reflect on the biggest legal development of the past five years. Today’s comes
to us from Vince Sliwoski, author on the Canna Law Blog.
Recently, I came across a law review article that
began by declaring that the struggle over marijuana regulation is one of the
most important federalism conflicts in a generation. While this statement is
bold, it is not nearly bold enough.
As a nation and as a society, we have reached a point
of both legal and cultural inflection when it comes to cannabis. It is hard to
imagine that things will ever be the same.
In the first half of this decade, four states and the
District of Columbia legalized marijuana for adult recreational use, and ten
additional states legalized marijuana for medical use.
Today, a total of 23
states and D.C. have legalized medical or recreational cannabis. Others have
decriminalized cannabis to some degree. And yet, cannabis remains a Schedule I
drug under the federal Controlled Substances Act, like heroin, with a “high
potential for abuse” and “no safe dose.”
The legal consequences of states acting contrary to
federal prohibition have been manifold. The fastest growing industry in the
United States has no access to banking, federal trademarks, bankruptcy court,
tax fairness, regulatory certainty, or reliable access to professional advice.
Under a very clear line of cases, the federal government retains the
prerogative to enforce federal law against any state-compliant marijuana
businesses at any time. Occasionally, it does.
When enforcement happens, it tends to come as a mild
surprise. This is because federal policy as relates to state legal marijuana is
opaque, having been conveyed in a series of memoranda from U.S. Attorneys
General since 2009. Each memorandum is studied and parsed ad nauseum, until one
day it is shredded and replaced with another. Today, the current federal
position is understood differently by state governments, entrepreneurs,
commentators and even by the many branches of the federal government itself.
Despite federal prohibition, states have
persisted in the movement from prohibition to regulation of marijuana,
especially in the past five years. State tax revenues have begun to accrue at
astonishing levels, with no discernable uptick in criminal behavior. Federal
legislators are warming to the idea of state-legal pot. In the past twelve
months, Congress passed a spending bill which bans federal dollars from being
used in enforcement actions against state-compliant marijuana businesses, and a
bi-partisan banking bill has been introduced in the U.S. Senate.
The reasons behind the state-by-state movement
toward legalization of cannabis are manifold. It is now commonly understood
that the U.S. War on Drugs has been a miserable and abject failure. According
to the Drug Policy Alliance, in 1980, the U.S. had 50,000 people behind bars
for drug law violations. Today, this number exceeds half a million. The U.S. is
now the world’s largest jailer, yet drugs remain widely available and treatment
resources are scarce. Billions of tax dollars have been wasted.
The acceptance of state-level marijuana appears to be
informed further by a growing awareness that the federal government has misled
Americans regarding the dangers of cannabis for the last 100 years. Many
people, including prominent public officials, now acknowledge having used the
drug with no deleterious effects. Many others rightly argue that the decision
to ingest marijuana belongs with the autonomy of the individual, and that the
free development of personality is a fundamental human right.
The next half of this decade should see the U.S.
descend the inflection point along the marijuana curve toward federal legalization.
In a legal sense, this will continue to transpire through a model of states’
rights and taxation; in a cultural sense, the shibboleth of marijuana as a
dangerous drug will be cast further to the fringes. For both legal and cultural
observers, these are truly remarkable times when it comes to cannabis.
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