Tuesday, October 20

Status Report: Nullify Federal Marijuana Prohibition

by Mike Maharrey

Marijuana is the granddaddy of the modern nullification movement. On no other issue do we find state-by-state resistance to federal power so advanced, well-funded, supported and successful. 

Beginning in California with the legalization of cannabis for medical use in 1996, states have advanced the issue every year. This has happened in spite of a 2005 Supreme Court opinion supporting federal prohibition, at least 12 years of relentless year-to-year increase in spending and enforcement efforts by the federal government through three presidential administrations and ongoing, complete prohibition at the federal level.

Thirty-three states and Washington D.C. have legalized marijuana for medical use, and 24 states along with Washington D.C. have decriminalized marijuana possession. Eleven states have expanded on these efforts and legalized marijuana for recreational use.

Each year, new state laws and regulations help expand the market, and each expansion further nullifies the unconstitutional federal ban in effect. With state and local actions accounting for as much as 99 percent of all enforcement efforts, the feds rely heavily on state and local help to fight the “drug war.” That help has rapidly evaporated in the last few years with marijuana legalization and decriminalization. 

In 2019, Illinois joined Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington State in legalizing marijuana for recreational use. Illinois was the second state to legalize adult-use marijuana through legislative action. Vermont was the first in 2018.

Voters in ArizonaNew Jersey and South Dakota will have the opportunity to legalize marijuana for recreational use during the 2020 election cycle. The South Dakota and Arizona referendums were placed on the ballot through a citizen initiative. The New Jersey legislature passed a resolution putting the issue before voters there.

Mississippi voters will choose between competing medical marijuana legalization initiatives in November, one placed on the ballot by citizen initiative, the other by the state legislature.

Meanwhile, several states expanded their medical marijuana programs and paved the way to grow the market even further.

New Jersey passed the biggest expansion. According to USA Today, the law  “simplifies the process for patients to qualify for, purchase and consume cannabis for medicinal purposes.”

Oklahoma also expanded its medical cannabis program and took a significant step to protect patient rights by including a provision that prohibits the denial of firearms ownership to patients using medical marijuana. The law also prohibits the state from denying a medical marijuana patient access to public assistance programs, including Medicaid, SNAP and WIC.

North Dakota’s expansion increased the number of qualifying conditions from 17 to 29 and expanded the definition of “health care provider” to include physicians assistants, authorizing them to offer medical marijuana recommendations. The new law also eliminated a provision that required doctors to attest that medical marijuana would definitively help a patient.

New Mexico expanded its program to allow medical cannabis use on school campuses under defined circumstances and extended the registration renewal period from one to three years. The new law also allows for licensed medical marijuana establishments to create “consumption areas.” 

Florida changed language in the current medical marijuana statutes to include the possession, use, or administration of marijuana in a form for smoking.

Utah made a number of tweaks to the state’s medical-marijuana program that will help expand access for patients. Significantly, the new law doubles the caps on the number of patients to whom a doctor can recommend marijuana from 300 to 600. It also adjusts dosing parameters to allow for more flexibility.

West Virginia made a number of changes to the state’s medical marijuana laws to streamline the program, increase access for patients, and open up the market.

And finally, Washington state enacted a law that allows the consumption of medical marijuana on school grounds.

We also saw some interesting cannabis market-expanding laws in states with legal recreational marijuana.

California enacted a law that severed a link between state and federal tax law, allowing individuals to deduct expenses from legal marijuana businesses for state income tax purposes.

Colorado enacted four new laws to help expand the legal marijuana market in the state. HB1230 legalized limited on-site sales and consumption of marijuana in licensed, public establishments. These include restaurants, hotels, music venues and other businesses. Dispensaries will be able to open “tasting rooms.” The law also authorizes marijuana tour buses and limos. Establishments running the vehicles can’t sell cannabis, but marijuana consumption is allowed in a “bring-your-own-weed” system. HB1234 legalized marijuana delivery. HB1090 opens up Colorado’s cannabis industry to outside investors and capital, including publicly held companies and large venture funds. And HB1311 established the Institute of Cannabis Research at Colorado State University-Pueblo. The role and mission of the institute are to conduct research related to cannabis and publicly disseminate the results of the research.

Marijuana businesses face significant challenges accessing banking services due to ongoing federal prohibition. West Virginia enacted a law to begin addressing this issue. The legislation empowers the West Virginia Treasurer to authorize financial institutions to provide banking services for the state fees, penalties, and taxes collected under the West Virginia medical marijuana program. The bill also commits the state to do everything “permitted by law” to defend these financial institutions and cover “payment of the amount of any judgment obtained, damages, legal fees and expenses, and any other expenses incurred.” The California legislature sent a similar measure to the governor in September

Maine ensured there will be a market for edible marijuana products in the state with the passage of a law declaring that food additives or food products containing adult-use marijuana are not considered to be “adulterated,” and thus, illegal.

We’ve also seen a growing movement to expunge past marijuana charges in states where cannabis is now legal. Washington stateVermontNew HampshireNew Mexico, UtahNew York. and Oregon all passed expungement bills in 2019-20. 

In many states, the decriminalization of marijuana is the first step. Decrim doesn’t legalize marijuana but it does change possession from a criminal charge to a civil offense punishable by a fine. Last year, Delaware and New Mexico passed decriminalization laws. New York expanded its decriminalization law by lowering fines.

As marijuana becomes more accepted and more states simply ignore the feds, the federal government is less able to enforce its unconstitutional laws. After more than two decades of state, local and individual nullification, the federal government’s unconstitutional prohibition of cannabis is beginning to come apart at the seams. 

This is an overview of the most recent moves to legalize marijuana and expand the market for cannabis despite federal prohibition. To get more details on state efforts to undermine the drug war, along with other unconstitutional federal actions and programs, make sure you read our latest State of the Nullification Movement report. You can download it for free HERE.

Posted with permission from the Tenth Amendment Center.

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