States Can Legalize Marijuana (Though Federal Laws Stand), Says Congressional Research Service


Smoking joint

If you've wondered just whether Colorado and Washington can make marijuana legalization stick in the face of federal law to the contrary, the Congressional Research Service has a (partial) answer for you. In a report dated April 5 of this year, the CRS concludes that states can't be dragooned into federal prohibitions. While the federal government can ban what it wants, the Tenth Amendment allows the states to opt out of participating in the law or assisting in enforcement in any way, leaving federal officials to do the heavy lifting themselves.

In State Legalization of Recreational Marijuana: Selected Legal Issues (PDF), authors Todd Garvey and Brian T. Yeh point out:

Although the federal government may use its power of the purse to encourage states to adopt certain criminal laws, the federal government is limited in its ability to directly influence state policy by the Tenth Amendment, which prevents the federal government from directing states to enact specific legislation, or requiring state officials to enforce federal law. As such, the fact that the federal government has criminalized conduct does not mean that the state, in turn, must also criminalize or prosecute that same conduct.

Cort decisions have been clear on this point, add Garvey and Yeh, emphasizing that "[u]nder both Tenth Amendment and preemption principles, federal and state courts have previously held that a state's decision to simply permit what the federal government prohibits does not create a 'positive conflict' with federal law."

This doesn't mean that engagers in activities formally forbidden by D.C. are home-free, however, since "[t]he federal government remains free to expend its own resources to implement and enforce its own law, regardless of whether the state chooses to criminalize that same conduct." The authors acknowledge, however, that most of the would-be enforcers work at the state and local level, leaving the feds a tad short-handed when it comes to busting growers, sellers and smokers of marijuana.

Thus far federalism takes the states, but perhaps not much farther. Washington and Colorado both envision bureaucratic regulatory and licensing regimes for marijuana, and that goes well beyond declining to enforce federal law and likely sets up an actual conflict with federal objectives. The states might be able to overcome such objections, however, continue Garvey and Yeh, by arguing that regulations limit access to marijuana or simply help to enforce compliance with state law. Whether that would fly would have to be determined in court.

Frankly, the position of the states would be much clearer, according to the CRS report, if they simply adopted a laissez faire regime and let the freak flag fly without government officials taking a regulatory role.

Less encouraging is Garvey's and Yeh's discussion of mechanisms available to a manpower-short federal government in the absence of cooperation by local police and state courts.

However, even if the probability of becoming the subject of a federal criminal prosecution for a violation of the [Controlled Substances Act] appears remote, there does exist a number of other consequences under federal law that are triggered by the mere use of marijuana, even absent an arrest or conviction. Perhaps most prominent among these concerns is the possibility that marijuana users may lose their ability to purchase and possess a firearm, be barred from living in public housing, or find themselves subject to employment consequences in the workplace.

That's in addition to asset forfeiture and civil lawsuits. Why yes, we have handed the federal government an awful lot of clubs with which to beat us into submission. But remember that the states don't have to help the feds identify marijuana users — eliminating regulatory and licensing bureacracies would be a nice step toward making such identification even harder. And, if the states can opt out of enforcing marijuana laws, it seems logical that they could do the same for firearms laws, too, as well as some of the other legal bludgeons D.C. might wield.

In short, voters in Colorado and Washington haven't quite ended America's long and unpleasant experience with marijuana prohibition. They have, however, deprived the federal government of most of its enforcement mechanisms by taking their state officials out of the game. That doesn't render federal drug warriors powerless, but it leaves them with many fewer options.


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  1. Soudns like some crazy smack to me dude.

    1. Wait. They’re legalizing heroin too?

  2. Welp that’s settled. I’m sure the Obama administration will respect CO and WA’s sovereignty and the will of their voters.




      1. Honestly, they’re doing as well as can be expected.

        The fight is at the state and local level. Let the comply with the voters’ instructions and intentions.

  3. There’s a tenth amendment!?

    1. According to the Media, there’s only one amendment, but it doesn’t apply once you get more than one person together under a single entity.

      1. Fry: I refuse to testify on the grounds that my organs will be chopped up into a patty.

        Judge Ron Whitey: Ah, the 67th Amendment.

  4. wait until the Federal Governments starts withholding funding to states that do not enforce federal drug laws. They do that with drinking age and road funds.

    1. The Sebelius ruling means that there is a limit to how much they can withhold. Basically, if it’s significant enough to be considered coercive, they can’t do it.

      The highway funds were ruled to be too small, but the Medicaid funds met the threshold.

  5. According to the Media, there’s only one amendment, but it doesn’t apply once you get more than one person together under a single entity
    to you.

  6. While the federal government can ban what it wants,


    It took a constitutional amendment to ban alcohol, and that amendment was repealed. There is no remaining authority to ban any drug delegated to the federal government by the constitution. Any act of congress that purports to ban marijuana or any other drug is not a law, but a usurpation.

    As for the claim that the commerce clause grants this power, that’s absolute bullshit. If the commerce clause granted the powers that the fascists claim it does, then the rest of the constitution would be moot.


    1. No, the feds can’t ban what they want, but they can, and must ban things that are against international treaties, such as the various drug control treaties of the UN.

      That’s all under Article Six of the US Constitution…

  7. I’m curious as to how setting up a regulatory regime would create a positive conflict with federal law.

    It doesn’t seem to me that state officials would ever be involved in the manufacture, distribution, sale, or consumption of controlled substances. It also seems a stretch to claim that regulators are involved in an ongoing criminal conspiracy.

    From where would this conflict arise?

    1. It doesn’t seem to me that state officials would ever be involved in the manufacture, distribution, sale, or consumption of controlled substances

      Uhm, welcome to Washington’s Seed-to-store regulatory framework (still in process) from a state where liquor was controlled by a state monopoly, only to be ripped from their cold, dead hands after 40 years of trying. Yeah, as I post downthread, that same, still-bitter agency is now in charge of the manufacture, distribution, sale and consumption of marijuana.

      1. And under federal law, agents enforcing a state or local law regarding a controlled substance are exempt from DEA registr’n requirements regarding that substance.

  8. We’ll see just how ‘legal’ marijuana feels in Washington after the state’s jilted liquor board workers get their grubby paws all over the regulatory framework.

    1. Colorado’s is looking much better, and I think ultimately the fact that they allowed home growth is a big part of it. All the possible regs that could be put in place are neutered by the ability of individuals to produce their own cannabis.

      1. The local press is leg-humping the ‘consultant’ that they’ve hired to create the seed-to-store system here in Washington. They follow him around, breathlessly watching his every move, and hard-hitting questions of existing medical grow operations about their processes:…..ting-weeds

  9. Testing.

    1. Test successful Danny.

        1. We’re all still here, so how successful could it have been?

      1. From reading a couple other threads, I think this may be American

        1. We should have a wiki of the local trolls. I get some of them confused.

          1. Great idea. American’s basically every racist nativist troll you’ll encounter on this site with the exception of Chris Mallory.

    2. Yes, you successfully skirted your ban.

  10. “Frankly, the position of the states would be much clearer, according to the CRS report, if they simply adopted a laissez faire regime and let the freak flag fly without government officials taking a regulatory role.”

    Kind of like California?

    Except for federal intrusion and local neocon obstruction, that model has been working here for a decade now.

    Cannabis needs no more regulation or control than echinacea or St. John’s wort.

  11. Cannabis school – in addition to Oaksterdam U.…

  12. is that a self-portrait? Alternate ALT TEXT needs to say so if so.

  13. shit, I thought we were in the United States of America. Looks more like some corporations fighting over money.

  14. How does this work? If it’s grown in the state sold and consumed then what place or right do the feds have to regulate? It’s not crossing states.

    At the same time then why can’t AZ enforce Federal immigration laws. You can’t have it both ways. For Pot the Local authorities help the feds and that’s allowed but with immigration it’s not allowed.

    How is it ok with anyone to have the Feds ignore your state laws and do whatever the hell they want to you whenever they choose to enforce the rules. This is why our economy sucks. Just like playing a football game with Refs that call fouls and penalties whenever they feel like it. We live under laws that should only be on the books if they are going to be enforced anything else is abusive to those who live in fear.

    A lot of people say you should fear if you aren’t doing anything wrong so tell that to the Lacrosse players and all those others whose lives were destroyed by abuse of the legal system and media.

    If they want to get you there’s enough old laws on the books they’ll find a away which isn’t honest or the government I want to live under.

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