With the recent focus on abortion rights shining a light on local politics, another major “firestorm” issue involving state rights at a local level is cannabis legalization. Cannabis, much like abortion, has been a taboo topic for a long time in America—but as an increasing number of states move toward “acceptance” in some fashion, the public conversation on national legalization is becoming more prevalent. These two topics have brought to the debate the argument over federal versus state regulation and it is an argument that must be had for the nation to survive in the long run.

The bureaucracy bloat from the federal government getting involved in state-related issues over time—most of which can better be decided on and managed from the local level—has resulted in a major battle over state-determined “rights.”

Cannabis has a storied history with prohibition, but in 1970 its fate as an illegal substance was cemented with the passage of the Controlled Substances Act (CSA). The CSA labeled marijuana a Schedule I controlled substance, joining with the likes of heroin, ecstasy, the date rape drug (GHB) and above other very addictive opiates in the Schedule II level (as seen in the chart below). With this label came an entire slew of unintended consequences including the “War on Drugs”—the mass incarceration of black men for possession crimes and a restriction on medical research and application of the cannabis chemical compound.

Table showing the Schedules of controlled substances

Since then, there have been raging debates about state versus national legalization. The problem is that the argument always stalls out because of Article VI of the Constitution, more specifically the “Supremacy Clause” within paragraph two of Article VI, which states that federal law takes precedence over state law. This type of “supremacy” of federal law being upheld over state law was seen in the 2005 cannabis-related decision of Gonzales v. Raich:

“Respondents were California residents who suffered from a variety of serious medical conditions and had sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. After an investigation, county officials concluded that one respondent’s use of marijuana was entirely lawful under California law; nevertheless, federal agents seized and destroyed all six of her cannabis plants. Respondents brought an action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA).”


The decision determined that the US Constitution’s “Commerce Clause” was the legal precedent for allowing the federal law to supersede the state marijuana law.

“The Court held that the regulation of marijuana under the CSA was squarely within Congress’ commerce power because production of marijuana meant for home consumption had a substantial effect on supply and demand in the national market. Given the enforcement difficulties in distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, the Court had no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Congress was acting well within its authority of the Commerce Clause, U.S. Const., art. I, § 8.”


Due to the issues caused by the Supremacy Clause and the increasing number of laws passed by the states each election cycle, the legislators are seeing far more pressure to act than ever before. Every odd year since 2011 the Ending Federal Marijuana Prohibition Act is reintroduced to Congress, the most recent version of the bill (H.R.1588) put forth by bill Sponsor Rep. Tulsi Gabbard (D-HI-2) on March 7, 2019.

The main point of the bill is to remove marijuana from ALL schedules in the CSA, which would have other consequences on the judicial system side with regards to expungements and social equity programs. The most recent action taken on this bill was on April 8 when the Committee on the Judiciary referred it to the Subcommittee on Crime, Terrorism and Homeland Security. Additionally, in June 2018, Senators Elizabeth Warren and Cory Gardner first introduced a lesser version of “legalization” called the Strengthening the Tenth Amendment Through Entrusting States Act (STATES), which was reintroduced this April in both the House (H.R.2093) and Senate (S.1028).

When the Act was introduced, Leafly reported that the reason for the STATES Act was because then-Attorney General Jeff Sessions “rescinded the Cole memo, an Obama-era policy document that shielded legal cannabis states from federal interference,” and that this new STATES Act was “intended to replace and expand on the Cole memo, and to enshrine cannabis protections in law rather than the Cole memo’s nonbinding Justice Department policy.” Though not legalizing cannabis nationally, the STATES Act would be a major step forward for state’s rights. It’s worth noting that President Trump has said that should the STATES Act reach his desk, he would likely sign it into law.

Besides efforts made at the federal level to fix this issue, states have been each moving forward, albeit at their own pace, towards some form of legalization. The chart below by Insider Inc. shows just how many of the 50 states have some cannabis policy in motion. Currently, there are more than 30 states that have some form of legalization or decriminalization on the books, with more considering legislation in 2020 and beyond.

Additionally, DISA Global Solutions, which offers workplace safety and job compliance services across many industries, compiled a list of marijuana specific laws by each state, which further illustrates the ever-growing trend toward a legalization tipping point.

states where marijuana legal map

Given that marijuana has been one of the causes for the ballooning prison population, a hard look must be made at fixing this obvious situation. The First Step Act was a “step” in the right direction for attempting to fix the broken prison system in America, but more needs to be done. Some politicians, when considering local cannabis legislation, are looking to add in social equity and other expungement terms to policies in order to rectify decades-long abuses to certain community groups. This was seen recently in New York where legislators were deciding whether to include adult-use cannabis in the budget package, ultimately failing due to a weak social equity offering. Majority Leader of the New York State Assembly Crystal Peoples-Stokes spoke on the meaning of equity.

“Equity in a regulated adult use market starts with separating licenses, providing an affordable licensing process, offering low-interest loans, and prioritizing opportunities to people historically disenfranchised and imprisoned as a result of the war on drugs,” Peoples-Stokes said.

She wasn’t lying, and politicians across the country are going to follow in her footsteps given the push recently into identity politics and intersectional communities. Whatever the case may be, social equity and expungement will continue to be a sticking point in further negotiations as states decide on further legalization.

Lastly, the 2018 full-scale national legalization of cannabis in Canada and the possible legalization of cannabis in 2020 for Mexico puts America in a peculiar position to its North American counterparts. Given that NAFTA is on its way out with the United States-Mexico-Canada Agreement (USMCA) set to replace it in the coming years (following certain procedures and Congressional votes being met), America needs to figure out this decades-long problem.

The possibility of a new international marijuana trading marketplace is set to open up in the coming years if Mexico continues with its legalization plans, and the United States would be crazy not to join in.

With all these combined variables and the nearly 6 in 10 Americans agreeing that marijuana should be legalized, the next two election cycles should bring the national versus state’s rights debate into even greater focus in the same way that abortion has been a hot topic for months. Soon there will be enough states in solid “legal” territory to push a two-thirds majority, which would also mean that state representatives would be voting in its favor, thus tipping the scales. America is at a crescendo in its cannabis politics and it’s only a matter of time before the wave crests. Whether the issue is decided at the national or state level, a decision needs to be made for positive progress to be made. Allowing the status quo to continue is not an option.

If Congressional politicians could agree on one thing, it’s probably that political fighting has reached a fevered pitch in America ready to tear us apart.

Maybe they should take a hint, sit down together and smoke some of that evil reefer.

It definitely won’t kill them, like the opiate problem they won’t fix either.

Written ByThe M.A.N

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