Now That Pot-Averse Conservatives Are Openly Defying the Federal Marijuana Ban, What Excuse Does Congress Have for Maintaining It?

Mississippi Gov. Tate Reeves' grudging support for medical marijuana speaks volumes about the erosion of support for prohibition.

In 2020, Mississippi became the 35th state, and the second in the Deep South, to approve medical use of marijuana. But Initiative 65, which was favored by three-quarters of voters, never took effect, thanks to a legal requirement for ballot measure signatures that was impossible to satisfy. After the Mississippi Supreme Court overturned the initiative, the state legislature responded by independently approving a medical marijuana bill, which Gov. Tate Reeves signed into law yesterday.

The broad, bipartisan support for medical marijuana in a deep-red state shows how far the rejection of pot prohibition has spread since California became the first state to legalize medical marijuana in 1996. That reality seems to have sunk in almost everywhere except on Capitol Hill.

Mississippi's medical marijuana law, S.B. 2095, passed by an 8-to-1 margin in the state House and a 9-to-1 margin in the state Senate. A total of 37 states now allow patients to use cannabis for symptom relief, including conservative bastions such as South Dakota, where 70 percent of voters approved a medical marijuana ballot initiative in 2020, and Alabama, where legislators passed a law similar to Mississippi's by a 2-to-1 margin last year.

Even Reeves, a conservative Republican who worried that medical marijuana could become a cover for recreational use and threatened to veto S.B. 2095 if his objections were not addressed, eventually felt compelled to respect the will of the voters who overwhelmingly approved Initiative 65. "The 'medical marijuana bill' has consumed an enormous amount of space on the front pages of the legacy media outlets across Mississippi over the last 3+ years," the governor complains in a statement he issued when he signed the bill. "There is no doubt that there are individuals in our state who could do significantly better if they had access to medically prescribed doses of cannabis. There are also those who really want a recreational marijuana program that could lead to more people smoking and less people working, with all the societal and family ills that that brings."

Reeves says the changes he demanded (not all of which he got) were aimed at balancing the benefits of medical marijuana against the risk that it might, God forbid, allow some people to smoke pot for fun. "I have made it clear that the bill on my desk is not the one that I would have written," he writes. But he adds that "significant improvements" to the bill—including a reduction in the monthly purchase limit, an in-person visit requirement for cannabis prescriptions, and a ban on marijuana dispensaries within 1,000 feet of churches or schools—made the legislation something he could stomach. He thanks legislators for their responsiveness but ends on a churlish note: "Now, hopefully, we can put this issue behind us and move on to other pressing matters facing our state."

Given his anti-pot prejudices, Reeves' grudging support for medical marijuana speaks volumes about the current politics of prohibition. Under S.B. 2095, marijuana dispensaries are supposed to receive state licenses within six months or so, which means they could start serving patients by the end of the year. When that happens, they will be operating with state approval but in flagrant violation of federal law, which still recognizes no legitimate use for marijuana. Reeves, despite his reservations and his distaste for people who relax with a joint rather than a cocktail, is cool with that.

Eighteen of the 37 states that allow medical use of marijuana, accounting for more than two-fifths of the U.S. population, also allow recreational use, which is clearly a bridge too far for Reeves. South Dakota Gov. Kristi Noem, another conservative Republican, has a similar attitude. When voters in her state approved medical marijuana in 2020, they also approved a broader measure, Amendment A, that would have created a state-licensed recreational market. Noem, who opposed both measures, acquiesced on medical marijuana but backed a successful legal challenge to Amendment A, which the South Dakota Supreme Court nixed last November after concluding that it violated the "single subject" rule for constitutional amendments.

As abstruse as the legal arguments about Amendment A were, the issue that defeated Mississippi's Initiative 65 was even more perplexing. A state law required that no more than a fifth of the signatures for the ballot initiative come from a single congressional district. That made sense when Mississippi had five congressional districts, but by 2020 it had only four, which made it impossible to meet this requirement. Madison, Mississippi, Mayor Mary Hawkins Butler nevertheless persuaded the Mississippi Supreme Court that the law had to be applied as written.

Unlike Mississippi legislators, who have replaced the invalidated initiative with their own law, South Dakota legislators so far have not produced a bill that would accomplish what Amendment A aimed to do. While prominent Republicans in the state legislature have suggested they would like to do that, Noem has threatened to veto any such bill. Amendment A's backers are therefore working on a 2022 legalization initiative that complies with the South Dakota Supreme Court's interpretation of the "single subject" rule.

Congress, meanwhile, has done nothing to address the untenable conflict between state and federal marijuana laws, except for an annually renewed spending rider that bars the Justice Department from interfering with state medical marijuana programs. Notwithstanding that rider, the department is helping California and Kansas cops use civil forfeiture to steal money earned by state-legal medical marijuana suppliers.

President Joe Biden, who says states should be free to go their own way on this issue, nevertheless opposes repealing the federal ban on marijuana. Senate Majority Leader Chuck Schumer (D–N.Y.), who says he wants to legalize cannabis, recently torpedoed a bill that would have removed federal barriers to banking services for state-licensed marijuana businesses.

According to the latest Gallup poll, 68 percent of Americans think marijuana should be legal. When even pot-averse Republicans like Tate Reeves are responding to public opinion by openly defying the federal ban, what excuse do Biden and Congress have for maintaining it?