This past Thursday, Senators Cory Gardner and Elizabeth Warren introduced a bipartisan bill to protect states that have legalized marijuana from federal intervention. Shortly thereafter, President Trump, in a Q&A session with reporters held on the White House lawn, said that he would probably support the bill if it makes it to his desk. The president’s statement got far more coverage than the announcement of the bill itself — which is, perhaps, a good thing.
The bill, named, The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, is written to require federal law enforcement agencies to defer to state laws when it comes to the production, distribution, and possession of marijuana.
Back in April, Senator Gardner announced that he had come to an agreement with President Trump. Trump agreed to support Gardner’s efforts to protect states’ rights in marijuana-related matters, and Gardner would end the blocking of Justice Department nominees.
At a press conference with Senator Warren announcing the measure, Gardner said, “Our Founders intended the states to be laboratories of democracy and many states right now find themselves deep in the heart of that laboratory. But it’s created significant conflict between state law, federal law, and how we move forward.” He added, “I think this will be an opportunity for us to fulfill what is that federalism approach.”
Senator Gardner also commented, “The federal government is closing its eyes and plugging its ears while 46 states have acted. The bipartisan STATES Act fixes this problem once and for all by taking a states’ rights approach to the legal marijuana question. The bipartisan, commonsense bill ensures the federal government will respect the will of the voters – whether that is legalization or prohibition – and not interfere in any states’ legal marijuana industry.”
Senator Warren said in a follow-up statement, “Outdated federal marijuana laws have perpetuated our broken criminal justice system, created barriers to research, and hindered economic development. States like Massachusetts have put a lot of work into implementing common-sense marijuana regulations – and they have the right to enforce their own marijuana policies. The federal government needs to get out of the business of outlawing marijuana.”
Warren and Gardner, who both represent states with legal recreational cannabis, announced a partnership in April to introduce the measure.
The House Companion Bill
A bipartisan companion bill in the House Representatives was also announced by Representatives David Joyce and Earl Blumenauer.
In a statement announcing the bill, Representative Joyce said, “We should trust the people of the states, like Ohio, who have voted to implement responsible common-sense regulations and requirements for the use, production, and sale of cannabis. If the people of these states have decided to provide help for those veterans and others suffering from pain and other health issues, we should allow them access without government interference.”
Representative Blumenauer also commented, saying, “For too long the senseless prohibition of marijuana has devastated communities, disproportionately impacting poor Americans and communities of color. Not to mention, it’s also wasted resources and stifled critical medical research.”
Justin Strekal, Policy Director for the nonprofit marijuana reform group NORML, helped develop the bill. “President Trump made a commitment to Senator Gardner that he would support a federalist approach to state marijuana laws. Now Congress must do its part and swiftly move forward on this bipartisan legislation that explicitly provides states with the authority and autonomy to set their own marijuana policies absent the fear of federal incursion from a Justice Department led by militant cannabis prohibitionist Attorney General Jeff Sessions,” Strekal said in a statement.
Jolene Forman, staff attorney at the nonprofit Drug Policy Alliance, also contributed input to the bill. Forman said in a statement, “This bipartisan proposal clears the way for states to develop their own marijuana policies without fear of federal intervention. This will give states more opportunity to restore communities that have borne the brunt of the drug war and mass criminalization.”
The Tenth Amendment
The Tenth Amendment is being cited as the legal basis for a federalist approach to marijuana laws. It states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
However, in 2005, the Supreme Court declared that the delegated power “to regulate interstate commerce” allowed Congress to criminalize a cancer patient who was growing pot for personal use. In his dissent, conservative Supreme Court Justice Clarence Thomas stated, “By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power.”
What’s In the Bill?
“This is not a legalization bill — I think that’s very important,” Gardner said Thursday. “If a state like Oklahoma or Kansas or Nebraska chooses not to do this, they do not have to. The federal law remains the same. Nothing changes for them.”
What the bill does do is amend the Controlled Substances Act so that its provisions no longer apply to anyone who is complying with state or tribal laws on the “manufacture, production, possession, distribution, dispensation, administration, or delivery of marijuana,” as long as those states comply with “a few basic protections.”
Despite increasing support for downgrading cannabis to a less serious classification, marijuana would still be considered a controlled substance at the federal level. This means that nothing changes for veterans.
The bill also amends the definition of “marihuana” under the Controlled Substances Act, removing industrial hemp from the list.
The Banking Issue
By ending cannabis’ federally illegal status, the bill would also in effect allow cannabis businesses the same privileges as any other legitimate banking client.
According to Warren, federal law “forces a multi-billion dollar industry to operate all in cash.” She added, “That’s bad for business and bad for safety.”
To remedy this situation, the bill specifically states that legal transactions under state law “shall not constitute trafficking” or “the basis for forfeiture of property.”
“This city of Denver, the state of Colorado, can collect taxes … they can take it to the bank,” Gardner said. “But if you’re in the business, if you work for the business, you can’t get a bank loan or set up a bank account because of the concern over the conflict between the state and federal law. We need to fix this public hypocrisy.”
Some banking hurdles will remain. For instance, cannabis businesses could still have their accounts rejected or closed.
Surprisingly, tax hurdles to operating a cannabis business will remain as well. They will still not be able to take normal business deductions such as operating costs.
Spurred by Sessions
Despite increasing national support and legalization efforts, in January, U.S. Attorney General Jeff Sessions, a cannabis industry nemesis, repealed federal guidance on the matter contained in the Cole Memo. The actions created a panic in states with cannabis programs.
Then, in May 2017, Sessions sent a letter to congressional leaders asking that they eliminate an amendment that prohibits the Justice Department from using federal money to prevent states “from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.”
During the press conference, Senator Warren claimed that U.S. Attorney General Jeff Sessions’ harsh stance on marijuana was a catalyst for lawmakers to act to protect their states’ interests.
“Thanks to the Attorney General, more people feel the urgency of the moment in changing federal law on marijuana,” Warren said. “It spurred us to more immediate action, and to start at least to build the bridge.” To punctuate the point, Warren added, “Go Jeff Sessions.”
Last year, Sen. Cory Booker (D-NJ) also introduced a bill targeting marijuana criminalization, as well as its long-term impacts, to the Senate and House. Entitled the Marijuana Justice Act, the bill has gained such high-profile cosponsors as Senators Kamala Harris, Bernie Sanders, and Jeff Merkley.
Will It Pass?
The big question on everyone’s mind, considering that federal chamber floors are littered with dead-in-the-water cannabis bills, is will the bill actually make it to the president’s desk?
Gardner and Warren expressed their hope that the bill will receive broad bipartisan support.
Gardner said he spoke again with the president about the bill last week. “Not putting words in the mouth of the White House, but I think this will be an opportunity for us to fulfill what is that federalism approach,” he said.
Conservatives opponents could, however, once again prevent the bill from coming up for key committee or floor votes. This recently happened with a cannabis bill for veterans.
According to Leafly, Lindsay Robinson, the executive director of the California Cannabis Industry Association said earlier this week, “It’s not so much Trump, it’s a lot of the other GOP. He might have a more progressive attitude than some of his other counterparts.”
Those In Favor
Leafly staff has put together a very comprehensive list of proponents:
The STATES Act initial list of co-sponsors is bi-partisan, bi-cameral and national. In the Senate it’s: Senators Catherine Cortez Masto (D-NV.), Rand Paul (R-KY), Lisa Murkowski (R-AK), and Cory Booker (D-NJ). The House by Representatives’ co-sponsors are: Carlos Curbelo (R-FL.), Jared Polis (D-CO), Ken Buck (R-CO), Walter Jones (R-NC), Diana DeGette (D-CO), Rob Blum (R-IA), Steve Cohen (D-TN), Matt Geatz (R-FL), Eleanor Holmes Norton (D-DC), Tom McClintock (R-CA), Luis Correa (D-CA), Jason Lewis (R-MN), and Ro Khanna (D-CA).
Many more members like Rep. Barbara Lee (D-CA) and Sen. Kamala Harris (D-CA) have taken positions favorable to co-sponsoring.
Longtime cannabis prohibitionist Sen. Diane Feinstein evolved on this issue this spring, saying she now favors a states-rights approach to cannabis regulation. Her evolution came during a tough primary in which Feinstein failed to secure the endorsement of her state Democratic Party, and several challenges ran to the left of her. Sen. Feinstein sits with Sen. Chuck Grassley (R-IA) on the powerful Senate Judiciary Committee, where many bills live or die.
- The legislation has been endorsed by organizations including:
- the American Civil Liberties Union (ACLU)
- Americans for Tax Reform
- the Brennan Center for Justice
- the Cooperative Credit Union Association
- the Drug Policy Alliance, the Institute for Liberty
- LatinoJustice PRLDEF, the Law Enforcement Action Partnership
- the Marijuana Policy Project
- the Massachusetts Bankers Association
- the Maine Credit Union League
- the Mountain West Credit Union Association
- the National Cannabis Bar Association
- the National Cannabis Industry Association
- the National Conference of State Legislatures
- the New Federalism Fund
- the Northwest Credit Union Association
- R Street
- and the Taxpayers Protection Alliance
As Leafly pointed out, “Roughly 75% of Americans support allowing states to set their own cannabis policy, and soon maybe Congress will too.”
This article by Cannabiz News Editor Rick Schettino originally appeared on PotNetwork.com.