America has been a nation divided for several years regarding the issue of marijuana. Thirty-seven states and the District of Columbia enacted legislation legalizing the use of cannabis products by adults for medical purposes. Its use for recreational purposes has been approved in 18 states and the District of Columbia.
The apparent popularity of these moves at the state level to lessen restrictions on possession and use of marijuana has created a division and conflict between state and federal laws. Marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act, thus making it subject to the most stringent controls at the federal level, even in those states that have enacted laws legalizing its use. In other words, it remains a serious criminal offense under federal law to possess, sell, cultivate or harvest marijuana.
The U.S. House of Representatives took a historic step toward eliminating this conflict between state and federal laws by passing the Marijuana Opportunity Reinvestment and Expungement (MORE) Act in April of this year. The future of the legislation depends on approval in the U.S. Senate, where early unofficial indications are that enough support may exist for the measure to pass in a tight vote.
Conflicts between state and federal laws
Suppose the elected officials of a state approve legislation making medical and/or recreational use of marijuana legal. In that case, you might think it would override any federal law making the drug illegal, at least in that particular state. Even though that may be what some states believed could happen, the Supremacy Clause of the U.S. Constitution and the U.S. Supreme Court said otherwise.
Paragraph 2 of Article VI of the Constitution, which has come to be referred to as the Supremacy Clause, says that federal law and the federal Constitution take precedence over the provisions of state constitutions and laws enacted by state legislatures. States cannot interfere with or assume functions exclusively reserved for the federal government.
What happens when laws collide?
The desire of states to legalize some form of marijuana use was destined to collide with the federal Controlled Substances Act. The case that first drew national attention involved state residents who cultivated marijuana themselves or had it cultivated for them to use in treating medical conditions under the care and supervision of a physician. At the time, the state had enacted a law legalizing the cultivation and use of the substance for medical purposes.
Deputies from the local sheriff's department accompanied agents from the Drug Enforcement Administration to the people’s homes; consequently, they found marijuana plants. After determining that the use complied with state law, the deputies took no action. However, the DEA agents seized and destroyed the plants.
The people whose plants were destroyed sued, seeking an injunction against enforcement of the federal Controlled Substances Act in California because it conflicted with state law. In a 6-3 decision, The Supreme Court ruled that Congress had authority under the Constitution to regulate commerce, which included prohibiting cultivation and use of marijuana. The California law authorizing cultivation of the drug infringed upon the powers of Congress and could not be used to prevent enforcement of federal drug laws.
The effects of the conflict between state and federal marijuana laws have been felt regardless if those individuals involved in their state’s legal marijuana industry have not faced arrest. For example, few banks and financial institutions have been willing to enter the murky legal waters, so marijuana dispensaries have been prevented from depositing proceeds from sales into a bank account as any other small business would, because banks fear that allowing such transactions could be a violation of federal laws against money laundering.
What does the MORE Act accomplish?
The MORE Act removes marijuana as a controlled substance under the federal Controlled Substances Act. Once this occurs, the authority to regulate cannabis rests solely with each state.
A change to federal law could benefit Oklahoma residents with marijuana convictions on their records or who are currently serving sentences for a marijuana-related offense. The MORE Act would pave the way for courts to expunge criminal convictions and review sentences once the Senate votes to approve the legislation.