The Volokh Conspiracy

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Cory Gardner and Elizabeth Warren Introduce Bill Largely Abolishing Federal Ban on Marijuana in States that have Legalized it Under their Own Laws

If it passes, this will be a major victory for both marijuana legalization and federalism.


A cannabis plant.

Earlier today, Republican Senator Cory Gardner and Democratic Senator Elizabeth Warren introduced the STATES Act, a bill that would largely eliminate the federal law banning marijuana in states where it is legal under state law. The new bill states that federal law banning marijuana "shall not apply to any person acting in compliance with State law relating to the manufacture, production, possession, distribution, dispensation, administration, or delivery of marihuana." In other words, if your posession, distribution, or sale of marijuana is legal under state law, it will—if this bill passes—be legal under federal law, as well.

For reasons I outlined in a previous post on Senator Gardner's efforts on this issue, the passage of the STATES Act would be an important victory for both marijuana legalization and federalism. Nine states and the District of Columbia have already legalized recreational marijuana, and twenty-nine states and DC have legalized medical marijuana. Both figures are highly likely to increase. In all of those jurisdictions, the STATES Act would largely eliminate the federal ban on marijuana possession and distribution. Gardner and Warren deserve credit for reaching across partisan lines to make progress here.

In two respects, I wish the bill would go further. It would be better if it simply eliminated the federal ban on marijuana entirely. If states want to forbid or restrict marijuana possession, let them do so on their own dime, without federal assistance. In addition, the STATES Act an exemption for distribution of marijuana to persons under the age of 21. That will still be illegal under federal law, even if state law permits it. In my view, this issue should also be left to the states. This is especially true when it comes to people over the age of 18. If 18-year-olds can be trusted to vote, drive a car, and serve in the military, they should also be allowed to possess marijuana subject to any conditions imposed by state law.

That said, the best should not be the enemy of the very good law. If it passes, the STATES Act would be a major improvement over the status quo.

The introduction of this legislation is the result of a deal Senator Gardner struck with President Donald Trump in April. In January, Attorney General Jeff Sessions ended an Obama-era policy that limited federal prosecution of marijuana user and distributors in states that had legalized pot under their own state laws. In retaliation, Gardner, who represents the first state that legalized recreational marijuana, held up Trump Administration nominees for Justice Department posts in order to pressure Sessions into reversing his decision. Under the deal, Gardner lifted his blockade on the Justice Department nominees and Trump apparently agreed to support the passage of legislation similar to that which Gardner and Warren have now introduced.

While the STATES Act stands a good chance of passing, its success is not certain. In my earlier post on the deal, I noted two potential obstacles:

[C]elebration may yet turn out to be premature. Trump has a history of unreliabiility and it is not yet clear whether he will uphold his end of the bargain with Gardner. As Democratic Senator Ron Wyden (a supporter of marijuana legalization) put it on Twitter, this could be "another episode of @realDonaldTrump telling somebody whatever they want to hear, only to change directions later on." Jeff Sessions and other drug war hardliners in the administration might yet undermine the deal, just as anti-immigration hardliners in the White House scuttled Trump's seeming agreement to various deals on DACA

Even if Trump does not back out, it is not yet certain that Gardner's proposed legislation can get through Congress. It is highly likely that it could win a majority vote in both the Senate and House, given the support of the overwhelming majority of Democrats, and a good many Republicans. But it is at least questionable whether it can secure the support of a majority of the House GOP caucus. If it does not, lame-duck House Speaker Paul Ryan might apply the so-called "Hastert Rule," under which legislation cannot come to a vote unless it has the backing of a majority of the majority party—not just a majority of the House as a whole.

Nonetheless, legalization supporters at least have good reason for cautious optimism. Public opinion is rapidly becoming more supportive of marijuana legalization, and the Gardner-Warren bill is likely to attract substantial bipartisan backing. If the STATES Act does pass, hard-core drug warrior Jeff Sessions will have unintentionally made an important contribution to the demise of the very policy he champions. Had Sessions not acted as he did in January, Cory Gardner would not have held up the Justice Department nominees in retaliation, and there probably would not have been a deal between Gardner and Trump.

UPDATE (June 9): Since I wrote this post on June 7, Trump has said he will "probably end up supporting" the STATES Act. This is far from a definitive commitment. But it's certainly a step in the right direction.