As one of the most rapidly growing industries in the world, cannabis production and usage has seen numerous developments and has been shaped by cannabis laws. Although marijuana, which is classified as a Schedule 1 drug by the 1971 Controlled Substances Act, is illegal under federal law, multiple states have legalized cannabis for medical usage since 1996. How is this possible?
Essentially, the Supremacy Clause of the United States Constitution provides that federal law manages dissent between federal and state law. However, the Tenth Amendment establishes that while federal law may impose its own cannabis laws, the state agents are not required to enforce them as it would be unconstitutional commandeering of the state’s resources.
State law is only preempted by the Controlled Substances Act if i) abiding to both state and federal law is impossible or ii) state law is hindering the Controlled Substances Act, which is avoided through state medical marijuana programs.
It is important to know that the federal government legalized hemp growing, but it has not legalized marijuana. Therefore, most individuals who partake in cannabis should look towards state laws to determine the stance of their legal situation regarding their possession and usage.
Which U.S. States have Legal Cannabis?
The legality of cannabis is heavily dependent on whether the individual possesses it for medical or recreational use. Medical marijuana is cannabis and cannabinoids (compounds found in cannabis) that are specifically prescribed by doctors for their patients. Currently, the District of Columbia and 37 state cannabis laws have legalized the usage of medical marijuana for certain qualifying conditions depending on each region.
The other 13 states cannabis laws only permit CBD (cannabidiol) products, a type of cannabinoid. Medical marijuana contains much higher amounts of THC (tetrahydrocannabinol), which is another cannabinoid that is a primary psychoactive compound of cannabis, largely responsible for the “high” that weed is known to give. In contrast, CBD products tend to have little to none THC content.
In comparison, recreational marijuana is only legal in 18 states as well as Washington D.C., the District of Columbia, Guam and the Northern Mariana Islands.
However, thirteen states and the U.S. Virgin Islands have decriminalized the recreational use of cannabis. Although still technically illegal, this means that the possession of cannabis will not lead to criminal prosecution, but rather, reduced penalties such as monetary fines. Typically, first time possession of marijuana below a certain amount (ranging from 10 to 42 grams depending on the state) will result in no arrest, prison time or criminal record. Instead, the offense can be likened to receiving a speeding ticket — a civil infraction or minor misdemeanor.
Although cannabis remains illegal under federal law, there has been a significant push towards the legalization of marijuana, particularly the Marijuana Opportunity Reinvestment and Expungement Act. Also known as the MORE Act, this legislation was proposed to decriminalize and remove cannabis from the CSA. Although the bill was passed by the U.S. House of Representatives, the 2020 Act was ultimately unable to advance in the Republican-controlled Senate. However, the MORE Act was reintroduced to Congress on May 28, 2021. Should the legislation be passed:
- All previous cannabis charges, arrests and convictions will be expunged,
- A trust fund will be established to support people and businesses who have been affected by the war on drugs,
- The federal government will be prevented from discriminating against individuals due to cannabis use (including immigrants at risk of deportation),
- An excise tax on cannabis products and occupational tax on cannabis production facilities will be imposed,
- The Government Accountability Office will study the societal impact of cannabis legalization,
As views on cannabis continue to change, more U.S. states are likely to legalize this plant. It is important for the states residents as well as visitors to the states be mindful of how different the laws may be.