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Does The Latest Attempt To Legalize Marijuana Have A Chance?

By Rick Schettino
Jun 12, 2018

Last Thursday, Senators Cory Gardner (R-Colorado) and Elizabeth Warren (D-Massachusetts) introduced a bipartisan bill into the Senate protecting states with legalized marijuana from federal intervention. The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, would require federal law enforcement agencies to defer to state laws when it comes to the production, distribution, and possession of marijuana. President Trump told reporters that he would probably support the bill if it makes it to his desk, a statement that received more coverage than the announcement of the bill itself.

In April, Senator Gardner came to an agreement with President Trump following a months-long standoff that saw the Senator hold up key Justice Department nominees over the issue of federal intervention in states with legal cannabis. Trump agreed to support Gardner’s efforts to protect states’ rights in marijuana-related matters, and Gardner ended his blockade of Justice Department nominees.

“Our Founders intended the states to be laboratories of democracy and many states right now find themselves deep in the heart of that laboratory,” Gardner said at a press conference with Senator Warren announcing the measure. “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.”

Warren and Gardner, who both represent states with legal recreational cannabis, announced a partnership in April to introduce the measure. Meanwhile, a bipartisan companion bill in the House of Representatives was also announced by Representatives David Joyce (R-OH 14th District) and Earl Blumenauer (D-OR 3rd District). Justin Strekal, Policy Director for the nonprofit marijuana reform group NORML, helped develop the bill, as did Jolene Forman, staff attorney at the nonprofit Drug Policy Alliance.

Representative Joyce, in announcing his support for the bill stressed that government should follow the will of the people. "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."

The bill has also been touted as restitution of sorts for what many consider to be the failed “War on Drugs.” Representative Blumenauer made this point when he noted that, "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."

The Tenth Amendment is being cited as the legal basis for a federalist approach to marijuana laws. The amendment itself states that the U.S. government only has the powers designated to it by the constitution, and nothing more. That right has been challenged over the years, such as in 2005, when 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 felt that the court was abandoning their duty to limit the powers of the federal government.

What’s In The Bill?

Of course, Senator Gardner is adamant that the bill is not an attempt to legalize marijuana, rather it keeps marijuana legal in states that have already passed such laws. “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 when it comes to federal programs. For example, nothing would change for veterans. The bill also amends the definition of “marihuana” under the Controlled Substances Act, removing industrial hemp from the list.

However, by ending cannabis' federally illegal status, the bill would also in effect allow cannabis businesses the same privileges as any other legitimate banking client. Currently, banks are afraid to deal with the cannabis industry for fear of the federal government bearing down on them.

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.”

Some banking hurdles will remain. For instance, cannabis businesses could still have their accounts rejected or closed. Also, 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

Prior to U.S. Attorney General Jeff Sessions repeal of the “Cole memo” in January, the embattled top lawmaker 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 enacting their own legislation legalizing cannabis 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.”

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 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. Something similar recently happened with a cannabis bill for veterans. More importantly, Senate Majority Leader Mitch McConnell, himself a proponent of hemp, has stated he is against any form of marijuana legalization.

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.”

According to Leafly, a number of legislators are in favor of the bill, though those members hardly constitute a majority. The current list of politicoes who have signed on in favor of the bill includes Senators Catherine Cortez Masto (D-Nevada), Rand Paul (R-Kentucky), Lisa Murkowski (R-Alaska), and Cory Booker (D-New Jersey). Meanwhile, in the House of Representatives, the bill has support from Carlos Curbelo (R-Florida.), Jared Polis (D-Colorado), Ken Buck (R-Colorado), and Walter Jones (R-North Carolina), among others.

Many advocacy groups support the bill as well, according to Leafly, including the American Civil Liberties Union (ACLU), Americans for Tax Reform, and the Brennan Center for Justice, just to name a few.

As Leafly pointed out, “Roughly 75% of Americans support allowing states to set their own cannabis policy, and soon maybe Congress will too.”

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