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Is Marijuana Legal in Your State?

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Thanks to massive lobbying efforts by Pizza Hut and Dominoes, the legalization of marijuana has really taken off in the last 10-15 years.  A lot of states are feeling the buzz so to speak and passing legalization or medical marijuana laws.  So, can you legally smoke, what are the risks, and should you open a Pizza Hut near your local college? 

So, my brother and I opened a medical marijuana store.  We keep our money in a “joint” account. Get it? No?  Okay, I made one up myself with a legal twist: What is the difference between legal and illegal marijuana?  One comes from the “farm” and one comes from the “pharm.”  Still no?

Ok, the state of Marijuana laws in the USA is in a state of flux.  States are pulling back from the War on Drugs of the 80s and early 90s and allowing for the medicinal use of marijuana.  The laws are all over the place.

Let’s start with the “high” states and no, I’m not talking about “O – hi – o.” If you live in Alaska, first – stay warm, and second you are in weed heaven as you can grow and sell and smoke as much marijuana as you want except on Federal property which we’ll talk about in a couple minutes.

Smoking pot, personal use, is also legal in California and Colorado (the mile high city after all) – no surprise there!  But it’s also legal in Washington DC – go figure.

 That reminds me, while testifying before Congress President Bill Clinton stated that he experimented with marijuana in college, that he did it in rain and even snow but never in-hale.  Never inhale…  No? That’s not my joke anyways..

Also fully legal by state law for adult personal use – Illinois, Maine and Massachusetts maybe no surprise being your more liberal states and Illinois the the home of President Obama who not only inhaled but said, and I quote: “In my final year my approval ratings keeps going up. The last time I was this high, I was trying to decide on my major.” Gotta love Obama.

And rounding out the legal states: Nevada, Oregon, Vermont and Washington.  Congratulations if you live in one of those states – puff away – I mean, go away.

The next category of states are those where marijuana remains illegal – as in go to jail illegal.  Alabama, Idaho, Kansas, Mississippi, Nebraska, the Carolinas, South Dakota, Tennessee, Wisconsin and Wyoming.  No sale no possession – go to jail do not pass go.  These states are way too uptight.  Relax there Wyoming! Your state animal is the bison – very chill.

If you are in a state that I have not mentioned yet, your state has either passed some version of a medical marijuana law OR has decriminalized marijuana to some extent – for example in Connecticut possession is a fine of $150 – it’s a “dope” law.  (Sorry I’m going to stop now).

Also, shout out to our territories Puerto Rico and Guam  – you have medical marijuana laws but can still go to jail for possession.

So, most states have decriminalized marijuana to some extent and the power to regulate drugs is squarely in the Constitutional powers of the states as the Tenth Amendment says that any power not specifically delegated to the Federal Government is given to the State and that is construed as laws regulating the health and wellness of the people.

BUUUT, the Federal Government is not out of the picture all together and this is where it gets confusing.  If you are in a state where marijuana is legal, put the bong down for a second and re-focus here with me.  The Constitution has a little part called the Commerce Clause which allows the Federal government to regulate and control interstate commerce – the movement of goods across state lines.  Here’s how the Commerce Clause got involved in our discussion.

Back in 2002 California had recently passed a medical marijuana law and a lady with a medical marijuana prescription had 6 plants in her house she used for medicinal purposes.  Well, the Feds found out and raided her house which led to a lawsuit and eventually an appeal of the raid on the basis that the Federal Govt. had no Constitutional authority for the enforcement of Federal laws in California. Eventually the case made its way up to the US Supreme Court which held that the Federal Govt. DID have the Constitutional authority to regulate marijuana because, under the Commerce Clause, Congress has the power to regulate activities that “substantially affect” interstate commerce, including the power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce.  In other words, allowing medical marijuana in California would affect the price of a bag of weed in Nevada and therefore the raid was legal under the Commerce Clause.  It was a horrible decision in my opinion and was actually the catalyst for Snoop’s 2005 hit “Smokin all My Bud” from the album Doggy Style – just kidding.

In any case so now we know that since back in 2005 that the Federal laws can and do apply to the States and under Federal Law marijuana is a Schedule I drug – same as cocaine and heroin.  So why aren’t the Feds raiding the medical marijuana stores in Colorado?

Well, they actually did – especially between 2005 and 2013.  But even back during the Bush presidency enforcement was sporadic and focused on money laundering and other criminal activity.  Then, President Obama in 2013 issued an Executive Order – a directive – that the Feds would no longer enforce Federal drug laws on a local basis.  Unfortunately, that directive was overturned by, guess who?  Yep, President Trump rescinded that directive in 2018 so authorities were instructed to enforce Federal marijuana restrictions. 

But even in the last two years enforcement has been sporadic  and focused on areas clearly within the Federal purview – interstate commerce, banking and guess what else?  Yes, taxes.  The Feds will come down on your local dispensary hard if they don’t pay their taxes.

So bottomline is that we live in the areas of legal grey – it’s illegal under Federal law to buy or sell marijuana but it’s not enforced at the individual level and you should only probably be nervous if you are transporting across state lines, laundering money through your marijuana business,  or in the business of marijuana and not paying Federal taxes.  Otherwise, you are not likely to get a visit from the Feds.

And there is your summary of the current state of marijuana law – it’s a mess right now but heading in the right direction.  Now pick up your bong and go back to what you forgot you were just doing and – have a great day.

Jeremy Hogan
Jeremy Hogan
Attorney Jeremy Hogan is a partner at Hogan & Hogan.