Federalism Could Affect Wave of Legalized Marijuana Measures

It was a busy election season, and among the different measures and candidates on the ballots were differing referendums and amendments designed to legalize the use of marijuana to differing extents. While the laws have passed in many different states, there remain hurdles to the implementation of these laws.

New Laws Passed

Florida, Arkansas, Montana, and North Dakota expanded the ability to legally obtain marijuana, most for medical purposes, in the previous election. The uses will likely be highly regulated, prescribed by medical providers, and available in relatively limited amounts.

Massachusetts, Nevada, and California legalized the use of the drug for recreational purposes. More than one of every five Americans live in a state where Marijuana is legalized to some degree.

But the path to open and legal use of marijuana is still unclear. Many states have already legalized its use, but the ability to do so has been at the will and permission of the federal government which has, until now, taken a blind eye to the practice.

How the Feds Could Interfere

It may seem counterintuitive that the Federal Government could restrict marijuana usage or keep it criminalized, when a state’s population has voted to the contrary, but federal drug laws still exist, and are still valid.

Since 2013, the federal government has taken the position that as long as minors were not threatened, and there was no risk of driving while impaired, that it would use its discretion to look the other way. But any decision by the new president—or any president in the future—to enforce those federal laws, could put a quick end to the open and legal use of the drug.

This is the unique nature of our federal system. As a general rule, states pass and enforce laws regarding law enforcement and crimes. The Constitution does not say what a state can or cannot criminalize.

But the federal government also has the ability to regulate—and thus criminalize—certain activities that involve crossing state borders, such as commerce and trade of goods, including marijuana. Thus, the federal government can, and has, criminalized marijuana usage.

Usually, there is no conflict—rarely would a state consider something to be legal that the U.S. government thinks should be a crime. But obviously, this is a rare occasion where that is happening.

Will the feds crack down on states’ legalization of marijuana? Likely not. At this point, there are too many businesses with too much investment into it as an industry. And, politicians at the federal level generally do not like interfering contrary to a state’s will, as voted on by its people.

So, while the use of marijuana is still technically illegal everywhere under federal law, as states ratify its use, it is likely that there will be no impediment to the implementation of those laws.

If you have been arrested or are being charged with a crime, make sure that your attorneys understand the state of the law. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your case.