Largely lost in the massive attention focused on the electoral results of 2018’s congressional voting, were the many ballot initiatives and state constitutional amendments on which votes were cast. These ranged from victims’ rights to environmental issues and voting rights for ex-felons. One of the more important of these issues, at least from a national policy perspective, were the half dozen ballot questions liberalizing state laws on marijuana.
The stars may now be aligning in such way that the federal government will either follow the states and relax marijuana possession laws, or at least formally back off and leave those states that have done so, alone.
As a result of the November 6 elections, 10 states and the District of Columbia now permit adult recreational use of marijuana. This reality would have been virtually unimaginable less than two decades ago when I served in the House. The trend toward legalization of adult toking, coupled with the change in the House majority from Republican to Democrat that will take place formally in two short months, significantly improves the chances that the federal government’s position – which still classifies marijuana as among the most dangerous of “controlled substances” – will actually soften.
The forced departure of Attorney General Jeff Sessions – long a foe of relaxing any marijuana laws or policies, including its use for purely medicinal purposes -- may provide the accelerant needed for such an event to ignite; especially since President Trump has spoken in favor of leaving the question of adult marijuana use up to the voters in the several states.
It now is apparent, at least at the state level – which is where principles of federalism place this issue – that voters deciding to relax laws against use of marijuana has become a winning issue; not everywhere, certainly, but in several states from east coast to west.
One of the more vocal anti-marijuana Members of the House, Texas Republican Pete Sessions, lost his reelection bid; and the question of marijuana legalization appears to have been a factor in his race.
For advocates of federalism (a group that included our Founding Fathers), this represents a welcome and long-overdue change. Decisions by state voters to relax marijuana laws constitute serious blows against the heavy-handed status quo that had reigned since 1970, when the federal government adopted the Controlled Substance Act and essentially trumped all state marijuana laws.
Technically of course, federal law still decrees it is unlawful for anyone to use, possess, grow, or sell marijuana; and so long as the federal CSA remains on the books unchanged, this will continue to hold true. From a practical perspective, however, as an increasing number of states take the approach that personal use of marijuana by adults does not pose an existential threat to their citizenry, the federal government will find it increasingly difficult to justify prosecuting such activity.
This is where the Congress may step in, and at least indirectly support such state actions. Recent, and consistent national polling suggests strongly that if Congress does move to soften federal anti-marijuana laws, it would have the clear majority of citizens on its side. A poll by the respected Pew Research Center conducted just last month, for example, revealed that some 62 percent of Americans support some degree of marijuana legalization.
Interestingly, one of the more vocal anti-marijuana Members of the House, Texas Republican Pete Sessions, lost his reelection bid; and the question of marijuana legalization appears to have been a factor in his race. The impact of Sessions’ loss could be a major one, insofar as he chairs the important Rules Committee, and has employed the power of that post to block floor votes on actions that would protect states that have legalized adult use of marijuana from punitive federal action.
With the change in majority in the House, not only will Members with views more favorable toward states relaxing marijuana laws be chairing key committees, but bipartisan legislation that would protect states that legalize adult marijuana use from being penalized by Uncle Sam, may be afforded a vote. This legislation would be consistent with a rider that has, for the past four years, been attached to the Justice Department appropriations bill, and prohibits (despite strong efforts by Sessions to have it repealed) the Department from using any of its appropriated monies to prevent states from implementing laws allowing medical use of marijuana.
With so-called “Red States,” including Missouri and Oklahoma joining “Blue State” counterparts in leaving it to the voters to decide whether to relax state marijuana laws, and with the changes already set in motion in the House of Representatives and the Administration as a result of the mid-term elections, real change to federal marijuana policy may very well be in the wind.