Is America being made to legalize cannabis?
Over the last few years, the US has significantly relaxed its cannabis laws. At the time of writing, 37 states and Washington, DC have legalized medical cannabis, and 18 of those states plus Washington, DC have also legalized recreational usage. While this might because for celebration for pot advocates, federal law means that cannabis law remains a bit of a gray area in the U.S., so in this article we’re going to be looking at how cannabis law has evolved over time both at the state and federal level and how it might change in the next few years.
For most of American history, weed was actually completely legal as far as the federal government was concerned. This changed with the marijuana act of 1937, which required someone to both pay a tax and register to buy, sell, grow, or import cannabis. The registration would then be made available to all law enforcement agencies, including state or local police departments. Since all 48 states at the time had banned cannabis, it was effectively a prohibition. The tax lasted until 1969, when the supreme court ruled that it violated the fifth amendment because it created a situation where someone would need to self-incriminate. This victory for pot smokers would be short-lived. In 1970, Congress passed the Controlled Substances Act, which created five different schedules that would classify a drug and demonstrate how it would be regulated by the federal government.
Schedule 5 drugs were deemed to have a very low risk of abuse and acceptable medical usage. These would include things like cough medicine, which you could purchase over the counter. Schedule 1 drugs were deemed to have no acceptable medical use and a very high risk of abuse. These drugs, including heroin, are completely banned by the federal government. According to the law, cannabis was placed in schedule 1 due to its relationship to the use of other drugs linked to aggressive behavior and effects on physiology and psychology. Due to the possible health risks and the federal government’s strict classification, the U.S. states began initiatives to legalize parts. The first of which came in 1996 when California voted for Proposition 215 to legalize medical marijuana. Unfortunately for 420 advocates, it did not deter the federal government from enforcing the controlled substances act.
Californian federal law enforcement agencies soon started conducting raids in California, and the federal government would also start trying to sue marijuana distributors. In 2001, one of these lawmakers would make it to the supreme court, where the Oakland cannabis buyers cooperative argued that there was a medical necessity for them to supply medical marijuana to patients. The supreme court’s decision ultimately disagreed, ruling that it was up to the federal government to define if there was a medical necessity for cannabis. Only a few years later, in 2005, the issue was brought before the Supreme Court again in Gonzales v. Raich, with the focus of the argument for medical marijuana being the commerce clause in the United States Constitution, which specifically grants the United States Congress the authority to regulate commerce with foreign nations and among several states.
Essentially, if something crosses state or national borders, then the U.S. Congress has the power to regulate it. The defendant in this case, Angel Reich, was a caregiver who had homegrown their own medical weed. This was legal under Proposition 215 in California, but illegal under the federal government’s controlled substances act. Unfortunately for home growers of any plant, the Supreme Court had already decided during the Great Depression that the federal government was constitutionally allowed to regulate agriculture that did not cross state lines because home growers were found to have a significant effect on interstate commerce overall. Precedent was clear, and it would be another loss for legal weed.
While the controlled substances act continued to be reaffirmed by the supreme court as constitutional, public opinion about legalizing cannabis was steadily changing and by the early 2010s polling started to show that a majority of Americans now supported it. By 2019 pew data put support at about 67 percent. This shift in public opinion paved the way for congress to pass the rohrabacher far amendment in 2014. rohrabacher far was an amendment to the law that would prevent the department of justice from interfering with state medical marijuana laws. After 18 years, proposition 215 would finally be protected from federal interference. Around this time Colorado and Washington became the first two states to legalize recreational weed and sales were set to begin in 2014. The Obama administration proactively prepared for this by issuing the coal memorandum, which directed federal law enforcement agencies to only focus on certain aspects of the marijuana industry.
The coal memorandum was later rescinded by Trump administration attorney general Jeff Sessions in 2018, but it could see a comeback. President Biden’s attorney general, Merrick Garland, signaled that he would consider reinstating the coal memorandum in some form during his senate confirmation hearing. Even if federal agents don’t actively interfere, banks don’t like working with cannabis dispensaries for fear of violating federal law. Dispensaries often end up having to transport cash around in armored vehicles or risk being robbed, which adds a lot of risk. Congress may be becoming more 420-friendly, though. There are currently several bills before Congress that could be game changers for recreational weed. The Safe Banking Act, which passed the House with bipartisan support in April 2021, would prevent federal banking regulators from penalizing banks whose services are used by legal cannabis dispensaries. The House of Representatives also introduced the marijuana one to three acts in January 2021, which would reschedule cannabis from a schedule 1 drug to a schedule 3 drugs under the controlled substances act. So maybe we are witnessing a real shift in attitude already.