Is Medical Cannabis Really Legal in 39 States and Washington DC?
It is often reported that thirty-nine states and Washington DC have legalized medical cannabis. And yet federal law still considers marijuana, THC, and their many derivatives Schedule I controlled substances. That means they are illegal under federal law. How can states legalize what federal law deems illegal?
That is the big question. And unfortunately, answers differ based on who you ask. Medical cannabis proponents insist that the states have the constitutional authority to legalize marijuana. Meanwhile, opponents insist that states cannot preempt federal law.
3 Ways Around Federal Law
By the strictest letter of the law, medical cannabis opponents are correct. State laws do not preempt federal laws, just as long as federal laws are in line with the constitution. So how do the states justify legalizing medical cannabis? There are three gray areas state lawmakers exploit to make medical cannabis legal. Here they are:
1. Anti-Commandeering
The legal concept of anti-commandeering dictates that the federal government cannot coerce state governments to enforce federal laws. It is a concept that was reinforced in the 2018 Murphy v. NCAA case. Relying on that case gives state officials the ability to turn the other way in regard to marijuana crimes. They can simply choose not to enforce federal law.
2. Federal Preemption Limits
The Constitution’s Supremacy Clause clearly makes federal law the “Supreme Law of the Land.” This essentially means that state law does not preempt federal law. But courts have ruled in the past that state legalization doesn’t require people to violate cannabis laws. It simply allows people to do things that federal law prohibits. Such a preemption limit, when combined with the anti-commandeering principle, gives states an out.
3. 10th Amendment Protections
The 10th amendment to the constitution forbids the federal government from forcing states to use their resources in any particular way. This is similar to the anti-commandeering principle in that states don’t have to spend money on federal law enforcement.
Regardless of the workaround state lawmakers might lean on to legalize medical cannabis, they are aided by federal legislation that has, for years, prohibited the DOJ from spending federal money on marijuana crime enforcement. The department’s hands are tied without funding.
Really Just a Lack of Enforcement
A close look at the three workarounds and the prohibition placed on the DOJ provides ample evidence that medical cannabis opponents are correct. States truly have not legalized medical cannabis. They have simply relied on legal gray areas to avoid enforcement of the federal statute. That does not make cannabis legal.
For all intents and purposes, none of this matters to the typical medical cannabis patient. A patient visiting the Beehive Farmacy medical cannabis dispensary and Salt Lake City, UT really only cares that he can get his medicine without having to worry about local authorities busting him.
The same is true of other Utah medical cannabis patients visiting pharmacies around the state. It is true of medical cannabis patients in Oklahoma, New York, California, Arizona, Oregon, and all of the other states that have green lit medical cannabis.
A Thin Line to Walk
Legalization vs. lack of enforcement might seem like a semantic issue. It’s not. Right now, the states have a thin line to walk. Why? Because if Congress suddenly changes its mind and restores the DOJ’s ability to fight marijuana crimes, things could change overnight. The states are counting on Congress not to do that.
Meanwhile, there is an ongoing attempt to move marijuana to Schedule III. If that happens, states will have to go back and look at medical cannabis again.It is often reported that thirty-nine states and Washington DC have legalized medical cannabis. And yet federal law still considers marijuana, THC, and their many derivatives Schedule I controlled substances. That means they are illegal under federal law. How can states legalize what federal law deems illegal?
That is the big question. And unfortunately, answers differ based on who you ask. Medical cannabis proponents insist that the states have the constitutional authority to legalize marijuana. Meanwhile, opponents insist that states cannot preempt federal law.
3 Ways Around Federal Law
By the strictest letter of the law, medical cannabis opponents are correct. State laws do not preempt federal laws, just as long as federal laws are in line with the constitution. So how do the states justify legalizing medical cannabis? There are three gray areas state lawmakers exploit to make medical cannabis legal. Here they are:
1. Anti-Commandeering
The legal concept of anti-commandeering dictates that the federal government cannot coerce state governments to enforce federal laws. It is a concept that was reinforced in the 2018 Murphy v. NCAA case. Relying on that case gives state officials the ability to turn the other way in regard to marijuana crimes. They can simply choose not to enforce federal law.
2. Federal Preemption Limits
The Constitution’s Supremacy Clause clearly makes federal law the “Supreme Law of the Land.” This essentially means that state law does not preempt federal law. But courts have ruled in the past that state legalization doesn’t require people to violate cannabis laws. It simply allows people to do things that federal law prohibits. Such a preemption limit, when combined with the anti-commandeering principle, gives states an out.
3. 10th Amendment Protections
The 10th amendment to the constitution forbids the federal government from forcing states to use their resources in any particular way. This is similar to the anti-commandeering principle in that states don’t have to spend money on federal law enforcement.
Regardless of the workaround state lawmakers might lean on to legalize medical cannabis, they are aided by federal legislation that has, for years, prohibited the DOJ from spending federal money on marijuana crime enforcement. The department’s hands are tied without funding.
Really Just a Lack of Enforcement
A close look at the three workarounds and the prohibition placed on the DOJ provides ample evidence that medical cannabis opponents are correct. States truly have not legalized medical cannabis. They have simply relied on legal gray areas to avoid enforcement of the federal statute. That does not make cannabis legal.
For all intents and purposes, none of this matters to the typical medical cannabis patient. A patient visiting the Beehive Farmacy medical cannabis dispensary and Salt Lake City, UT really only cares that he can get his medicine without having to worry about local authorities busting him.
The same is true of other Utah medical cannabis patients visiting pharmacies around the state. It is true of medical cannabis patients in Oklahoma, New York, California, Arizona, Oregon, and all of the other states that have green lit medical cannabis.
A Thin Line to Walk
Legalization vs. lack of enforcement might seem like a semantic issue. It’s not. Right now, the states have a thin line to walk. Why? Because if Congress suddenly changes its mind and restores the DOJ’s ability to fight marijuana crimes, things could change overnight. The states are counting on Congress not to do that.
Meanwhile, there is an ongoing attempt to move marijuana to Schedule III. If that happens, states will have to go back and look at medical cannabis again.
