Congressional Research Service says states can legalize cannabis

The Congressional Research Service (CRS) is part of the Library of Congress, and it provides "policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation." This month the CRS issued a report that says Colorado and Washington (where cannabis is legal, according to state laws) can't be coerced to enforcing federal cannabis laws. "While the federal government can ban what it wants," reports Reason, "the Tenth Amendment allows the states to opt out of participating in the law or assisting in enforcement in any way, leaving federal officials to do the heavy lifting themselves." From the report, State Legalization of Recreational Marijuana: Selected Legal Issues:

Although the federal government may use its power of the purse to encourage states to adopt certain criminal laws, the federal government is limited in its ability to directly influence state policy by the Tenth Amendment, which prevents the federal government from directing states to enact specific legislation, or requiring state officials to enforce federal law. As such, the fact that the federal government has criminalized conduct does not mean that the state, in turn, must also criminalize or prosecute that same conduct.

States Can Legalize Marijuana (Though Federal Laws Stand), Says Congressional Research Service

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  1. This entire legalization fight is going to be interesting to watch. The majority of the population is coming around to the realization that the most dangerous aspect of pot is what the government will do to you if they catch you with it. The lies based campaign against pot is becoming exposed for what it really is. Repeal of prohibition would benefit society. Law enforcement could shift priorities to real crime. The gangs that profit from illegal trade are not going away but there will be a blow to their profits. This is similar to the organized criminals that alcohol prohibition gave rise to. Repeal of prohibition damaged but did not destroy them. Those whose jobs and profits depend on prohibition are the most vocal advocates of keeping things as they are and they are looked upon as experts even when they make up statistics based only on studies that support their position. It is also true that many advocates of legalization tout pot as the cure for everything. Check out They have a balanced list showing many studies of the relative safety of marijuana vs alcohol, cigarettes and other substances. One other side effect of legalization is that there may be some benefit to growing industrial hemp as a source of fiber, oil and other products.

      1. Indeed. And while each state *can* still technically set their own drinking age, no state is willing to suffer the penalties for doing so. If the U.S. Congress wanted to do the same here, I don’t think there’s much that could stop them.

      2. growing up in the Reagan era, when adults would explain “Republicans are the party of less government interference in our lives,” I could not fully articulate why it seemed specious.  Now I would explain it as “less government regulation for boring old farts like them, but much more for the rest of us.”  Family values–or else!

        the story I heard was that Louisiana was the final hold-out on the federal law with a drinking age of 18, but they caved when the feds withdrew all funds for highways/transportation until they fell in line i.e. “the federal government may use its power of the purse to encourage states to adopt certain criminal laws.”

        this leads me to wonder about how this scenario will game out vis-a-vis the bottom line.  when the feds retaliate by withholding funds, will states not care due to the windfall of taxes collected on this popular vice?  but if so, then how come LA couldn’t get that together with alcohol taxes?  no question we’ll find out soon enough.

        1. It would be very, very difficult to collect a windfall of taxes on something that would still be a federal crime. And the feds wouldn’t have to enforce regularly: they would just need to have enough crackdowns to push it underground, away from the eyes of state tax collectors.

      3. All these years I’ve been blaming MADD for that.  I was too young back then to care what Congress was doing, but old enough to doubt that drunk 20-year-olds were the greatest menace on the road.

        And even if they were, it would make more sense to raise the driving age, since it was the cars, not the booze, that were getting people smashed.

        Net result?  Today it’s easier for teens to buy heroin than beer.

        1. In Germany, you can buy beer and wine (though not distilled liquor) at 16, and drive at 18.  It’s always seemed to me like the right way around to arrange those things – familiarize yourself with the effects of alcohol when you’re not going to be tempted to drive home.

      4. I don’t see anything backing up what you say. It was introduced by a (still-serving) Democrat senator and had so little opposition it was passed by voice vote in both houses.

    1. They can do it without even using financial pressure — they’re allowed to tank over jurisdiction and enforce their own law directly. Of course, they would probably use financial pressure anyway to get the states to carry the burden of enforcement as well.

  2. Mr. Frauenfelder – this showed up in my RSS feed from Cool Tools, too.  Was that intentional or an oversight?

      1. I did wonder whether you were insinuating that pot is a Cool Tool!  (or that legalizing it would be a Cool Tool?)

  3. This shouldn’t be surprising, but it means that the effect of legalization in Colorado and Washington is limited.  There is no longer a state law against possession, but it’s still illegal according to federal law, so the feds could still do raids as they’ve done in California against medical marijuana facilities.  Congress could pass a ridiculously high tax on pot as well. It would be stupid to do either of these things, but that hasn’t stopped them before.

    1. Exactly, there’s still nothing to stop the feds from raiding/arresting/prosecuting for possession in states that consider it legal, which will always seriously undermine the power of state law in that area as long as it continues to work that way. 

      On the other hand if they were to tax it, even in states where it’s legal, that would seem to contradict their right to enforce a ban. I hope the resulting legal quagmire would prevent them from having it both ways, but of course you can never be sure.

    2. They could – but it would probably be a political disaster for any president who allowed it.

  4. It’s long past time to change the DEA’s Schedule 1 status for marijuana, and especially the hypocritical policy that bans use of marijuana in medical research trials that might find sound medical uses for marijuana.

    1. IANAL, but AFAIK it doesn’t, really. See amendment 2 to the US constitution. As in, there’s a special case for this which significantly limits the feds’ ability to regulate firearms. Also, acronyms!

    2.  Fun question; super complicated answer.
      Basically, and I am sort of shooting from the hip here a little bit, the Federal Government can regulate firearms generally under its Commerce Clause power (see Wikipedia). If the federal government has a valid legal/Constitutional basis for its exercise of power, then the law will be the “Supreme law of the land” (See “Supremacy Clause” on Wikipedia).

      My cursory understanding (from reading the NY Times only, I haven’t read any proposed bills) of the pending legislation is that it increases background checks only. Because guns are bought and sold in interstate commerce, the federal government would almost certainly be able to regulate them.
      However, there is the 2nd Amendment (which has been “integrated” to apply to the states under the 14th Amendment. See the Wikipedia page for the 14th Amendment if you would like to learn more about this very interesting topic). So at some point there would be a conflict between the right to bear arms provided by the 2nd Amendment, and the the federal government’s right to regulate arms under the Commerce Clause.
      This is generally where the Courts would get involved to hash out how the law should work.

      It s difficult to speculate about how the courts would treat a law that hasn’t been passed, but my thinking is that if the gun legislation simply adds background checks, and not much more of a burden on firearm ownership, then it would probably not be an Unconstitutional constraint on the right of firearm ownership. This view is supported by the fact that there is already a background check system in place, which the Court has found to be Constitutional.
      Anywho, I hope that makes some headway for you with this issue. It is a bit of a complicated area.

  5. Why is your Federal Government SO FUCKING STUPID?

    Yeah.. good idea assholes, leave the $ in the hands of criminals, collect ZERO tax on sales, let that cash remain untaxed income which is likely to be spent on things that make law enforcement harder (guns/scanners/sophisticated laundering schemes).

    Sensible laws: You’re doing it wrong, while fucking up world drug policy as well.

    1.  The DEA is not stupid here, they have built a huge agency and consider themselves elite federal agents. The fear of being exposed for the useless tax parasites that they truly are keeps them pushing the hyperbolic lies based campaign against any easing of pot laws. Politicians fear being labeled “soft on drugs therefore soft on crime”.

    2. I know that’s a rhetorical question but it’s a dumb one. Do you actually think your government aren’t also dicks? If you want to gripe about ours, take a number and get in line.

      1. It is well established that US government pressure is the reason for international policy on marijuana, dating back to the Marihuana Tax Act of 1937, before which marijuana was legal in every country in the world.

        Read Howard Marks’ autobiography Mr Nice or Marijuana is Safer for more information on the subject.

        Do I actually think my Government aren’t also dicks? Well, yes and no. No, because they don’t have the balls to ignore US pressure and take their own stance on the subject and Yes because the Australian Federal Government doesn’t apply any pressure whatsoever on the states/territories here in which growing for personal use is allowed (South Australia & the A.C.T.)

        America started this idiotic war on pot and its disinformation machine has perpetuated it for the last 8 decades. I think my anger is correctly directed and justified.

  6. “Congressional Research Service says states can legalize cannabis”, but the fed still doesn’t follow its own guidelines for classifying Marijuana as a Schedule 1 Controlled Substance?!?!?
    Not to mention, what about the fed breaking its own laws by collecting taxes on ‘this substance’??
    Apparently, there is still a lot of work that needs to be done.

  7. So they can’t make the state arrest people but they can still go in there and arrest people themselves?  The worst of both worlds – drugs are still in the hands of organized crime and the criminals get to go unchecked.

    1. By criminals, I assume you are referring to the legal (under state law) activities of the citizens of these states…

      1. No, what I mean is extortionists and murderers.  I worry that because the DEA still has the power to arrest people legitimate businesses will not be able to take hold in a substantial way and drugs will still mostly come through the black market.

    2. What do you think, that some federal force of thousands is going come in and raid and arrest any retail or growing?? They have no money, or enough people. States put out more money in the assistance of DEA enforcement than the DEA itself puts out every year in drug enforcement. They RELY on local support in the end game. This is how alcohol prohibition was turned. States said no to federal interference one by one and refused to help the feds with a stupid law.

      1. Not every retail operation.  The mere threat that they could do it to a handful is enough to keep most people away from the market.  Is a bank going to give you a loan to start your business that may be subject to a federal raid?

        It’s obvious reading the responses I got that I came across as against legalization, but I’m very much more legalization.  I’m just concerned that the feds will make the entire process very ugly.

  8. Well, as a bar worker in a small college ski town in Colorado, here’s what’s happening:

    People are drinking less. Sucks for us bar workers, but there’s always tourists.

    Pot prices have plummeted due stiff competition. Our weed is really good, as well.local police don’t care about possession anymore (in fact, seem happy they DON’T have to care). Catching drunks is FAR more profitable for the man.

    The sale and manufacture of edibles is skyrocketing. 

    We’re poised to set about a 38 percent tax on retail sales and expecting tourism.

    Couldn’t care less what the Government thinks, because unlike WA, we don’t actually NEED any Federal money as long as we keep the oil and gas fields pumping.

    Although it’s not set in stone, most of that tax is slated for the General Fund last I heard, and schools. Just a few nuggets, more info is easily found online. No, it is not legal to smoke publicly  most people skip out to an alley way or simply put hash oil in their e-cigs and puff away where ever they please.

  9. Oh man, this is super misleading, and I wanted to take a moment to write a little bit about some Constitutional basics.

    Yes, the 10th Amendment prevents what is referred to in legal jargon as “commandeering”. Meaning (by way of an extremely general explanation) that the federal government cannot require the state to enforce federal laws.
    The classic example of this would be if the federal legislature passed a law that required state legislatures to pass specific law, imagine something like: “every state shall pass a law making playing the game of ping-pong a criminal offense”.
    This does not mean that the federal government cannot itself outlaw whatever it wants (“Playing ping-pong is a federal crime, to be prosecuted by the attorney general”), and enforce it itself, through any number of federal law enforcement organizations, such as the DEA. In point of fact, this is basically exactly what has been happening in California for the last several years, where the state has effectively legalized marijuana, but people are still being prosecuted by the federal government.
    The Supreme Court of the United States has specifically held this to be a valid exercise of federal power, despite the fact that the state had legalized the drug.

    If you are interested in reading more about this, the issue is sort of a can of worms, but you can start by looking at the Wikipedia entry for the 10th Amendment, and for the Supremacy clause.

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