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.

NEXT: Trump Suffers Another Defeat in Philadelphia Sanctuary City Case

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  1. To keep Trump on board; I’d suggest framing it to the president as, “Hey, you want to really stick it to Sessions? Keep supporting this bill . . . it’ll drive Sessions nuts!”

    1. Trump was on board almost 30 years ago

      In a speech delivered at the Miami Herald’s Company of the Year Awards luncheon, Donald Trump condemned the “war on drugs” as “a joke” and called for the legalization of drugs. “We’re losing badly the war on drugs,” he said. “You have to legalize drugs to win that war. You have to take the profit away from these drug czars.”

      1. And contrast that to Hillary:

        “I don’t think that will work. I mean, I hear the same debate. I hear it in my country. It is not likely to work. There is just too much money in it, and I don’t think that?you can legalize small amounts for possession, but those who are making so much money selling, they have to be stopped.”…..ant-legali

  2. How about a bill saying that the powers not delegated to the federal government are reserved to the states or the people…what? Already been done?

    1. Hey, just because it took a constitutional amendment to grant Congress the authority to outlaw alcohol doesn’t mean that any such thing is required to authorize the War on Drugs because… reasons.

      1. Because they figured out crooked judges were simpler than constitutional amendments. And the states can’t refuse to ratify Supreme court decisions!

  3. I know the House has the right to create their own rules, but for the love of god make discharge petitions secret unless/until they achieve a majority. Both parties are going to be in and out of power every decade or so, there’s no reason they should both cling to a system that denies a simple majority the authority to bring business to the floor for a vote.

    1. Originally, signatories to a discharge petition were secret. Only once the petition acquired a majority would the clerk announce who signed. In 1993, the procedure was changed to make every step of the process public, with signers published in the Congressional Record. This change was spearheaded by then?Rep. Jim Inhofe (R?Oklahoma).

      God and to think I already didn’t like him.

  4. It does seem silly to pass this instead of a legalization bill.

    1. Completely agree. The usual opponents are going to resist this bill whether in its current form or as a complete legalization on the federal level, so why not push for the best bill.

    2. The federal government doesn’t want to cede its power.

  5. I imagine it would also have the effect of eliminating the federal firearms prohibition for the lawful use of marijuana under State law (for those 21 and over).

    1. Only a repeal of the 1937 Marihuana Tax Act that treats marijuana as a federally controlled substance with no federally recognized medicinal value will do that.

      The Volstead Act (prohibiting alcohol) was repealed, but getting the federal government to admit to error in banning marijuana as an intoxicant with no social value is a hurdle.

      1. The 1937 act was repealed ca. 1966.

        1. And the 1937 act didn’t say it had no medicinal value. In fact it acknowledged that it did.

  6. I am not a lawyer not a legislator, but I find it hard to come to terms with a law that says that if your state legalizes something it will be lawful at the federal level, but if the state makes holds it unlawful, it is additionally unlawful federally. That makes no sense to me at all, I can’t imagine how that’s constitutional.

    Why not just repeal the federal law that outlaws it???

    1. It’s half a loaf.

      Also, do you want to throw zealous DEA agents out of work? Because if prohibitionist states had to do all the prohibiting on their own, without DEA help, there might be staff cuts.

      (Not really, they’d be reassigned to opioids, but it’s a theoretical possibility)

    2. If it is legal under federal, can federal employees still work on marijuana related crimes? (Assisting state/local officers, searching for marijuana shipments at the national borders etc.)

      1. More importantly, can they keep their jobs?

    3. Same thing was done w liquor following repeal of federal prohib’n?by US constit’l amendment, no less! Check out the details of the 21st.

      1. At least w.r.t. crossing the state line w it.

  7. Doesn’t this trip over Equal Protection? Is there another comparable instance where Federal criminal law varies by State?

    1. Only in enforcement – – – oh, wait.

    2. This exact reason is why I think it would be a terrible law. Federal Law shouldn’t vary by state, its should be consistent throughout the whole country. I think varying it by state is a very bad precedent.

    3. Are there criminal provisions in the Voting Rights Act?
      The sports gambling law struck down this season also had this property and was struck down for reasons other than that.

    4. My guess is no since it would only need to satisfy rational basis and claiming some form of federalism would likely be enough for the courts.

      1. Rational basis just speaks to justification. It doesn’t speak to State borders.

    5. It’s even worse. Federal law would also vary depending on whether or not you’re on tribal lands.

  8. If President Trump is behind this bill, shouldn’t he prepare the way by denouncing the UN drug treaties? The drug treaties themselves allow parties to withdraw from (“denounce”) their treaty obligations.

    Then if Trump really likes the idea of being bound by an international treaty (and he never struck me as that kind of guy), he can use the Bolivian Option – resubmit the treaty to the Senate with a reservation with respect to marijuana (Bolivia’s reservation involved Indians chewing coca leaves).

    I hope one of the Conspirators will do a post on this.

    1. He doesn’t have to. Cannabis is still Federally illegal. Very clever don’t you think?

      In time it will have to be corrected.

      But for now.

      1. A denunciation takes time to take effect, and anyway if you’re promoting a bill, successfully or not, at odd with the treaty regime, then you should get out from under the treaty.

    2. I think the US senate would have to denounce it.

      1. That’s why I’d love to see a Conspirator post.

  9. Well, here’s a thought; pass a bill requiring DOJ to actually follow existing federal law, and take the devil weed off the schedule one list, since it has proven medical uses. Once off the list, it will not have enough priority in the war against drugs to be an issue.

    1. If they’re not following existing law, impeach them.

    2. Silly to pass a bill requiring DOJ to do that (except possibly contingently, but then you have the same problem) when the bill could instead do it directly. Better yet, add cannabis to the list of articles which are “not controlled substances” so DOJ couldn’t add it back.

      The original placement of cannabis in schedule 1 was said by statute to be “temporary”, with the bill passing with a report saying they expected the control status to go by the eventual recommendation of the commission that’d been inaugurated to study it. In The commission reported, but neither DOJ nor Congress followed its recommendation to demote cannabis to schedule 5 or thereabouts.

  10. Why a major victory for federalism? What the congress taketh away from the States, the congress gives?

  11. How about an amendment to this legislation saying all persons convicted of Federal marajuna violations in states where it is now legal will be freed and their convictions expunged?

  12. Who, or what institution, would be the determiner of whether an individual’s conduct is in accordance with state law? If federal prosecution is brought against an individual on marijuana related charges then a threshold issue would be whether the individual’s actions were or were not in accordance with state law. But to decide this issue requires interpreting state law. Is this then done by federal courts using statutory construction, or by reliance on the decisions of state courts?

    While a law such as this would likely be a relief to the casual marijuana user, it could also be a source of anxiety for larger manufacutering and distribution centers that must comply with a complex system of state regulations. If marijuana is flatly illegal under federal law (setting aside past amendments attempting to limit federal prosecutions through spending) then everyone is on notice that they are in violation of federal law, no matter what. This law would seem to add a different angle of uncertainty, as failure to comply with just a single regulation, whether intentionally or not, moves the business owner to criminal enterprise. Maybe that’s “good” in that it adds incentive to complying with state regulations, or maybe it’s “bad” if the regulations fill a library and not everyone of them can, in practicality, be satisfied to a certainty.

    1. Federal courts apply and interpret state law routinely. They attempt to resolve state-law issues as the state would.

  13. Good first step but until it’s federally legalized, there will still be problems, e.g. interstate transportation or if you hold a security clearance.

    National level banks will also still be reluctant to process cash from marijuana sales.

  14. “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.”
    Well, but they can’t be trusted with alcohol, so why why should they be able to intoxicate themselves with something else?

  15. A victory for Federalism would require that Congress acknowledge the federal ban on marijuana to be unconstitutional. Otherwise it’s just another expression of the authority of the federal government: “We are granting this boon to the States, and by doing so we are claiming that we have the power to grant or deny such boons at our Federal whim.”

  16. So, state legalization of marijuana shall override federal criminalization?

    When I point out to gun ban supporters that my state constitution Article I Section 26 protects the right to keep and bear arms for self-defense and militia service and by extension all other traditional lawful uses of arms, their pat answer is Federal Supremacy: once they get the federal Second Amendment repealed and a federal gun ban imposed, 40+ states’ legal protections will rendered moot.

    US Constitution, Article VI
    … This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. …

    How the hell does state legalization of marijuana override the federal ban on marijuana when state protection of citizen’s right to keep and bear arms will be overridden by repealing Second Amendment and imposing a federal gun ban? Sounds like somebodies want it both ways depending on whose sacred ox is getting gored.

    The correct answer would be to admit that that 1937 Marihuana Tax Act and classification of MJ as no medical benefit were wrong, more cost than benefit, like the 1920 Volstead Act, the 1994 Assault Weapon Ban and several other Malum Prohibitum laws, and repeal the darnned mistake.

    1. “Sounds like somebodies want it both ways depending on whose sacred ox is getting gored.”

      Actually it’s called a democracy.

      Anyway, I don’t think 2A will be repealed anytime soon (50 years).

      And if it were to be overturned, it wouldn’t be because of us goofy leftists (the govt isn’t afraid of unarmed people).

      It would be overturned because of illegal right groups who wish to overthrow the govt by violent means.

      1. Support for gun rights is at the highest point it has ever been, since they started polling on the matter in the 1950s. Granted there is a dip every time there is a mass shooting, but then it just goes right back to where it was before the shooting after 6 months to a year. It’s maybe peaked in the past few years, but the way it stands now, roughly 20-25% of people would ban all if they could, but there is little support for such an extreme position. Predicting the end of the 2nd Amendment as the result of a right wing coup attempt is, uh, interesting and purely speculative fiction. Further, the era of gun banners getting slice after slice of the remaining loaf of gun rights is over, because gun owners know their end game (a total ban), and with Heller and McDonald decisions to lean on, they won’t compromise anymore.

        What you will see, absent the Supreme Court asserting itself on the 2nd Amendment, is a bifurcation of state gun control laws. Since Heller, states that were pro-gun have relaxed gun laws and expanded the right to keep and bear arms, while simultaneously, state’s that were anti-gun will continue to pass more and more restrictions up to the very line (and perhaps over) what the Court said was acceptable in Heller. This prediction, assumes, that Congress and the President will continue to be shy on the issue, and not pass items like Concealed Carry reciprocity.

      2. Ignoring the Constitution when convenient, embracing it when convenient, is not democracy.


        As a high profile example, back in the 1980s the Bruder Schweigen (Silent Brotherhood, aka The Order) murdered talk show host Alan Berg with a MAC-10 submachine gun manufactured by the Covenant, the Sword, and the Arm of the Lord, who ran an underground factory manufacturing full-auto weapons for the right wing underground. After receiving death threats from The Order, Alan Berg had applied for a handgun carry permit and his application was denied. Gun control disarmed the victim, not the criminal right wing group targeting him.

        Doing to guns what has failed with alcohol and marijuana would be a big mistake. Australian biker gangs make MAC-10s from steel and sheet metal in their machine shops. No legal guns does not mean no guns, any more than no legal alcohol means no alcohol or no legal marijuana means no reefer. Malum Prohibitum is a failed basis for controlling bad behavior by bad people.

        1. Not to mention… it’s widely considered “impossible” to round up the 20 million or so illegal immigrants in the country, even though every single one of those people has to eat at least every once in a while, and therefore probably can’t stay hidden at all times. How on Earth is it going to be possible to round up 400+ million firearms in this country, especially considering that firearms can stay hidden in a closet for decades without any loss of function.

          1. If they banned guns, it wouldn’t happen with them rounding them up. They would be made illegal, and every time one was found on account of something else (like say an angry ex-girlfriend calls the cops), then *wham* felonies up the wazoo for the guy that kept grandpa’s old guns in the back of the closet. Examples would be made of the poor sods, like the big bust for tax evasion of a celebrity that happens every year near April 15th.

            Before long, a majority of people would dispose of them, and the only ones who would have guns would be career criminals or non-authoritarian types.

  17. Either get rid of an unconstitutional ban on marijuana for all states, repeal the ban on all drugs, or don’t even bother.

  18. The whole way we are going about pot legalization is so clumsy and big government-y. Licenses to grow, limits on who [and where] can grow or sell, special taxes etc.

    I am personally agnostic on it but if we are determined to do it, just legalize it and treat it like any other crop. Treat it just like growing tomatoes or Christmas trees or corn.

    1. The marijuana taxes are set high enough to insure that there will be a bootleg market and a need for drug tax enforcement.

      Like after repeal of alcohol prohibition, the Bureau of Prohibition became the Alcohol Tax Unit, replacing Prohibition with a tax almost guaranteed to give moonshiners and bootleggers a profit motive worth the risk justifying keeping enforcement agents on the job.

    2. The notion we put up with government regulation of simple things like beer and marijuana and sports betting is mind boggling. Next up should be prostitution.

  19. A victory, yes, but for federalism? How so? Many things wrong with the USA today could be corrected if that concept, federalism, were tossed into the garbage where it belongs. Remember, there are two interpretations of federalism. One has the federal government subservient to the states in all matters except matters that threaten the nation. The other has the federal government sovereign over the states in nearly all matters. The former southern states in 1860 and following corrected the problem of federalism when they organized a new confederated American nation. A tyrannical “federalist” nation could not tolerate the loss of federal revenues from the former states and destroyed the new American nation, using federalism as its justification.

    1. If you take a look at the declarations of secession, you notice that the Northern states were accused of *abusing* their state rights by sheltering fugitive slaves.

      In their Constitution, the Confederates placed new restrictions on the states beyond what was in the original constitution (no voting for aliens, slaveowners have the right of sojourn in another state regardless of that states’s law).

      When the North won, the 13th Amendment, abolishing slavery, referred to the United States in the plural.

      The Northern victory ensured that the Union was unbreakable, and that the states would be under some new obligations (13th, 14th an 15th amendments) which generally involved civil rights, but the supremacy of the Union does not entail the supremacy of the federal government, simply that secession is not a remedy for what the feds do.

  20. Your proposal that the federal law be simply eliminated has sense, but would be much more controversial, as it would make it hard for states which wish to ban marijuana from doing so. Their residents would easily be able to buy cannabis online from another state.

    By keeping a ban on interstate commerce but not criminalizing people (at the federal level) for intrastate commerce this proposal allows for marijuana to be legal in some states and illegal in others.

    Like you, I would prefer it to be legal everywhere, but that is a bigger ask for Congress.

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