Led by Majority Leader Chuck Schumer, Senate Democrats have recently decided to move forward with efforts to legalize marijuana at the federal level. Marijuana is currently listed as a Schedule I substance, defined as a drug “with no currently accepted medical use and a high potential for abuse.”
The proposal comes in the wake of New York legalizing marijuana for recreational use on March 31st, becoming the 17th state to do so since 2012. 36 other states have legalized the drug for medicinal purposes.
This drive for federal legalization, however, might potentially hit a road bump in the form of the Biden administration. Since taking office, President Biden has reiterated his previous opposition to legalization, with Press Secretary Jen Psaki stating in March that the President’s “position [on legalization] has not changed.”
This puts the Biden administration not only at odds with Congressional Democrats, but with the American people as well. 67 percent of Americanssupport legalization in public opinion polling (78 percent of Democrats, and even a majority of Republicans).
With that said, Biden has argued that states should be free to implement their own cannabis laws, and that the drug should be rescheduled and decriminalizedfederally. Senator Cory Booker has called the President “a great partner” on the issue, stating that “as soon as you decriminalize marijuana, you open up states… to give way for [legalization].”
Nevertheless, in March, it was reported that White House staffers were fired or demoted, at least in part, for having admitted to past marijuana use on background checks. Some of those staffers had only admitted to use in states that had legalized cannabis.
Why is the status quo a problem for our democracy?
Given that so many states have legalized or decriminalized to date, what is the problem with the status quo? Why does it matter what the federal law is when the states have the power in our federalist system to pass their own marijuana laws?
First, the possession or sale of marijuana remains illegal under federal law, and the state laws legalizing cannabis do nothing to alter this reality. This means that it is entirely up to the discretion of the federal government whether to pursue prosecutions for violations of the Controlled Substance Act, even in states that have legalized marijuana. And indeed, in 2018, Trump’s DOJ rescinded guidelines issued in 2013 by Obama’s DOJ that halted federal prosecution for the regulated sale of marijuana and its usage in states where marijuana had been legalized.
Even though the Trump DOJ did not technically prosecute anyone under the CSA, this may have partly been because of a Senator who threatened to withhold support for any justice department nominee if such prosecutions took place. The rights of citizens across the country, let alone a $13.6 billion dollar a year business that employs 340,000 people, should not rest on such a whim. And whether or not a law is enforced should not depend on who is in power. The fact that it does undermines the Rule of Law.
Second, as a practical matter, this inconsistent regime of laws has created an absurd situation for marijuana businesses nationwide. Banks and credit institutions have been hesitant to work with such businesses because of federal anti-money laundering legislation. What’s more, even states that have legalized cannot engage in the cannabis trade with one another, because such conduct would constitute federal drug trafficking. Importantly, the federal prohibition has slowed research into the safety and therapeutic benefit of cannabis because institutions must get permission from the federal government before conducting studies.
Last, the inconsistency between the different state laws presents its own unique problems. In certain states, many are going to prison for simple marijuana possession, with more people being arrested for it than for all violent crime combined in 2018, while in others, people are legally enriching themselves from its sale. As a matter of fairness, similarly situated people should be treated the same under the law. While drug laws have never been enforced equally, this particular kind of unfairness highlights the absurdity of our nation’s cannabis policies, and hopefully will force us to adopt a more consistent legal framework moving forward.