D.C. Suddenly Discovers Tenth Amendment on Marijuana After Decades of State Action

WASHINGTON (Sept. 11, 2018) – On June 7, members of Congress announced bi-partisan legislation aimed at reforming federal cannabis laws via an appeal to the Tenth Amendment. This is another example of proposed changes in D.C. driven by state nullification efforts.

The Strengthening the Tenth Amendment by Entrusting States (STATES) Act of 2018 was introduced by Senators Elizabeth Warren (D-Mass.) and Cory Gardner (R-Colo.) in an attempt to eliminate the threat of federal prosecutions in states such as Colorado and Washington. A companion bill was introduced in the House by Representatives David Joyce (R-Ohio) and Earl Blumenauer (D-Ore.). Many see the bill as a response to Attorney General Jeff Sessions’ rescindment of the Justice Department’s Obama-era Cole Memo in January. The Cole Memo was interpreted as a step to discourage federal intervention in state-level cannabis legalization.

While the motivation behind the bill likely has more to do with political opportunism than Madisonian federalism, the STATES Act is the first bicameral, bipartisan legislation aiming to help prevent the federal government from interfering with state-enacted cannabis legislation.

This is another example of the federal government following the lead of state on marijuana. It’s almost certain that no such federal bill would have ever been introduced if states hadn’t paved the way by simply ignoring federal law, legalized marijuana and nullified federal prohibition in effect.

An evolution in thinking certainly created an environment ripe for changing federal marijuana policy in Washington D.C, but there’s more to it than that. The winds of change started blowing more than two decades ago when Californians took concrete action and legalized medical marijuana despite federal prohibition. In ensuing years, the movement grew at the state and local level to the point that the Sen. Warrens and the Sen. Gardners of the world simply can’t ignore it anymore. The federal government cannot stand up against this tidal wave. As a result, we’re beginning to see changes in federal law itself.

The STATES Act would carve out an exemption to the Controlled Substances Act for U.S. states that have reformed their cannabis laws. Most notably, the legislation would allow cannabis businesses to finally obtain basic banking services and remove industrial hemp from the list of controlled substances.

On the other hand, the bill would maintain federal provisions deterring interstate trafficking of cannabis from legal states into prohibition states. It also prevents those under 18 from working in the cannabis industry and the prevention of those under 21 from purchasing cannabis (not including medical marijuana). The bill also includes provisions to regulate unsafe production conditions.

The STATES Act is cosponsored in the Senate by Senators Catherine Cortez Masto (D-Nev.), Rand Paul (R-Ky.), Lisa Murkowski (R-Alaska), and Cory Booker (D-N.J.). It is cosponsored in the House by Representatives Carlos Curbelo (R-Fla.), Jared Polis (D-Colo.), Ken Buck (R-Colo.), Barbara Lee (D-Calif.), Walter Jones (R-N.C.), Dianna DeGette (D-Colo.), Rob Blum (R-Iowa), Steve Cohen (D-Tenn.), Matt Geatz (R-Fla.), Eleanor Holmes Norton (D-D.C.), Tom McClintock (R-Calif.), Luis Correa (D-Calif.), Jason Lewis (R-Minn.), and Ro Khanna (D-Calif.).

At least 12 governors are publicly supporting the STATES Act including Gov. Bill Walker (I-AK), Gov. Jerry Brown (D-CA), Gov. John Hickenlooper (D-CO), Gov. Larry Hogan (R-MD), Gov. Charlie Baker (R-MA), Gov. Brian Sandoval (R-NV), Gov. Phil Murphy (D-NJ), Gov. Andrew Cuomo (D-NY), Gov. Doug Burgum (R-ND), Gov. Kate Brown (D-OR), Gov. Tom Wolf (D-PA), and Gov. Jay Inslee (D-WA).

Thirty states, Washington, D.C. and the U.S. territories of Guam and Puerto Rico have enacted some form of medical marijuana program. Estimates are 63 million Americans currently live in jurisdictions where anyone over the age of 21 may legally possess cannabis. Voters overwhelmingly support these policy changes. According to a 2018 Quinnipiac University poll, 63 percent of Americans support full marijuana legalization and 70 percent believe that states, not the federal government, should set marijuana policy.

President Trump has indicated his tepid support for the STATES Act. When asked if he supports the legislation he responded, “I really do. I support Sen. Gardner. I know exactly what he’s doing. We’re looking at it, but we’ll probably end up supporting that, yes.”

The STATES Act is a mixed bag when it comes to actually strengthening the Tenth Amendment, but it can certainly be seen as a step in the right direction. If cannabis reform can be the “gateway drug” for citizens, legislators, and courts to rediscover the Tenth Amendment it could be a tipping point for federalism. Only time will tell if the STATES Act is successful and whether support for the Tenth Amendment in Washington D.C. can expand beyond the issue of cannabis.

About Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.

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