Weeding Out the Complications of American Marijuana Legislation
February 2022 | Jesse Fager, Staff Writer/Editor
It's no secret that marijuana has had a complicated past in the United States. In 1971, the federal government officially waged a “war on drugs,” passing the Controlled Substance Act (CSA), which criminalized marijuana.[1] This was a reaction to the heightened use of drugs in the 1960s, which then-president Nixon considered “public enemy #1.”[2] However, marijuana has now been highly accepted into our everyday lives, as 18 states have officially legalized cannabis for recreational use and even more for medicinal purposes.[3] While it is legal to possess marijuana in these states, the federal government still classifies marijuana as an illegal substance. This raises the question: how can state laws legalize something that the federal government deems illegal?
To begin, federal laws supersede state laws due to Article 6, Section 2 of the U.S. Constitution, more commonly known as the Supremacy Clause. This clause states that the Constitution and other federal laws are the “Supreme Law of the Land”, taking precedence over any conflicting state legislation.[4] Therefore, it is pertinent to first understand how the federal government has classified marijuana in order to assess its legality. As stated earlier, the Controlled Substance Act (CSA) is the primary piece of legislation regarding drugs like marijuana, as it regulates the manufacture and distribution of the many different controlled substances such as depressants, hallucinogens, etc. In addition, the CSA classifies drugs into different categories based on medicinal purposes and potential for abuse. According to the CSA, marijuana is a schedule 1 drug, meaning that it has a high potential for abuse and lacks medicinal value.[5] Due to this classification, cannabis is federally considered one of the most dangerous drugs, and its manufacture, distribution, and possession are all illegal. Other schedule 1 drugs include heroin, ecstasy, and LSD. Meanwhile, cocaine and meth are schedule 2 drugs, which are seen as less dangerous to the federal government.
To fully comprehend how the legal system operates regarding drugs such as marijuana, it is also crucial to understand pertinent case law. Considering the current illegality of cannabis, states cannot prevent the federal government from prosecuting individuals over possession of marijuana, even if states have legalized the drug. For instance, in 2005, the Supreme Court’s ruling in Gonzales v. Raich solidified the federal government’s power over marijuana under Article 1, Section 8, Clause 3 of the United States Constitution. This clause, more commonly referred to as the Commerce Clause, gives Congress the authority to both regulate commerce and restrict a state's power to regulate commerce.[6] As such, in Gonzales v. Raich, the Court ruled that the Commerce Clause allows the federal government to criminalize the possession and production of marijuana, even if different state laws allow it for medicinal purposes.[7] However, the Court did not mandate for states to aid in the federal prosecution of marijuana. Therefore, states cannot stand in the way of the federal government from prosecuting someone for a marijuana-related offense, but they are also under no obligation to help.
Even though marijuana may be legal in some states around the country, the federal government still has every right to get involved. It’s even possible for the federal government to prosecute a citizen just for having the drug in their possession. However, due to the prioritization of resources, the federal government needs to pick its battles regarding marijuana-related prosecutions. As such, the U.S. Department of Justice released the Cole Memorandum in 2013 to explain the specific set of circumstances that must occur in order for the federal government to get involved with the use of marijuana. The Cole Memorandum indicated that the federal government would only intervene with marijuana users under 8 specific circumstances, including the prevention of marijuana distribution to minors, the prevention of marijuana sales to gangs, preventing drugged driving, and preventing marijuana possession on federal lands.[8] As long as none of these circumstances are met, the federal government leaves consequences in the hands of the state government.
To conclude, even though states have some sort of power over marijuana laws, the federal government has power over the state. The federal government has every right to prosecute a citizen who is in possession of marijuana. However, there are a specific set of certain circumstances enumerated in the Cole Memorandum which must be met in order for the federal government to get involved. If none of the 8 circumstances set forth by the Cole Memorandum are not met, then the federal government tends to leave marijuana laws up to the state government. Now, whether or not this dissonance is problematic or should be changed is up to the federal government. As long as marijuana is federally illegal, though, then the war on this drug continues.
Sources
“A History of the Drug War.” Drug Policy Alliance.
“War on Drugs”. History.com. (New York City: A&E Television Networks, 2017).
Zoe Manzanetti. “Marijuana Legalization Continues to Grow: 2021 Laws Map”. (Governing, 2021).
“Article VI,” Legal Information Institute (Cornell Law School), accessed March 13, 2022.
Evan Fisher. “Federal marijuana laws”. (Findlaw, 2021).
“Commerce Clause,” Legal Information Institute (Cornell Law School), accessed March 13, 2022.
Gonzales v. Raich, 545 U.S. 1 (2005).
Deputy Attorney General James M. Cole to All United States Attorneys. “Guidance Regarding Marijuana Enforcement.” U.S. Department of Justice, August 29, 2013.