States’ Efforts to Blunt Federal Criminalization of Marijuana

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Medical marijuana will be on the ballot this November in Mississippi.  Initiative 65 proposes to amend the Mississippi Constitution to allow citizens, certified by physicians, to use medical marijuana.  For the most part, marijuana use and possession is illegal in Mississippi. Miss. Code § 41-29-139.  Marijuana use and possession is also illegal under the federal Controlled Substances Act (“CSA”). 21 U.S.C. § 812.  Despite this, Mississippi is one of many states that have legalized, or are attempting to legalize, marijuana in some form.

In 2005, the United States Supreme Court ruled that the CSA was not unconstitutional and therefore that Congress could ban the use of marijuana – even if a State approved it purely for medicinal purposes.[1]  Even so, States have proceeded with legalization efforts, bolstered by guidance from the federal government, known as the Cole Memorandum,[2] which took effect during President Obama’s administration. The memo, issued in 2013, advises that federal law enforcement resources should not be used to enforce the federal marijuana prohibition in states that have effective regulatory schemes for legalized marijuana. William Barr, President Trump’s current United States Attorney General, has informally accepted the memo’s continuation.[3]

Initiative 65, if successful, would provide a framework for the Mississippi State Board of Health to regulate the use of medical marijuana. [4]

Another constitutional amendment is on the ballot in South Dakota to legalize marijuana for recreational purposes.[5]  Arkansas and Florida likewise passed constitutional amendments in 2016 that legalized marijuana for medical purposes.  All in all, thirty-three States and the District of Columbia have legalized medical marijuana. Eleven of these jurisdictions allow recreational use as well.[6]

Despite the current stance by the federal government to not challenge State legalization to some extent, whether the CSA preempts state laws allowing for the legal use of marijuana has yet to be decided.  Article VI of the United States Constitution states that the “Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…” Article VI, Clause 2. Advocates of legalization point to a counter argument in the Tenth Amendment’s anti-commandeering doctrine.[7]

As if the legal framework for State legalization of marijuana were not already complicated enough, Nebraska and Oklahoma filed a motion for leave to file a complaint with the United States Supreme Court to challenge Colorado’s law legalizing marijuana in 2014.[8] They claimed that the Colorado law violated the Commerce Clause and allowed marijuana to flow into neighboring States. The Supreme Court declined to hear the case in 2016. Undeterred, however, the two States subsequently sought to join a case pending before the U.S. Court of Appeals for the Tenth Circuit challenging Colorado’s recreational marijuana laws.   Nebraska and Oklahoma were not allowed to join the suit, but a three-judge panel revived the underlying lawsuit allowing neighbors to sue a marijuana farm in Colorado for damages under the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961 et seq.).[9]

Currently, there are several bills pending in the United States Congress that would decriminalize marijuana or protect States’ rights to enact their own marijuana policies.[10]  Recent surveys show growing support for the legalization of marijuana, but the markets remain uncertain[11] – just like the legal landscape.


[1] Gonzales v. Raich, 545 U.S. 1 (2005).

[2] Memorandum for All United States Attorneys, Guidance Regarding Marijuana Enforcement, James M. Cole, Deputy Attorney General, August 29, 2013.

[3] President Trump’s first Attorney General, Jeff Sessions, rescinded the Cole memo but Barr has repeatedly stated he would not prosecute marijuana businesses operating in compliance with state law. https://www.marijuanamoment.net/u-s-attorney-general-says-he-prefers-marijuana-reform-bill-to-current-federal-law/

[4] Interestingly, the Mississippi State Board of Health has opposed the initiative. See https://t.co/AzVoOpBnnt.

[5] South Dakota Constitutional Amendment A, Marijuana Legalization Initiative (2020).

[6] https://www.webmd.com/a-to-z-guides/qa/what-us-states-have-legalized-medical-marijuana

[7] See On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime, Robert Mikos, Vanderbilt Law School, 2009.

[8] States of Nebraska and Oklahoma v. State of Colorado, Motion for Leave to File Complaint, Complaint, and Brief in Support, December 2014.

[9] Safe Streets Alliance v. Hickenlooper (June 2017).

[10] https://www.mpp.org/policy/federal/

[11] 5 Reasons Canopy Growth’s Q1 Report Was Actually a Dud, Sean Williams, August 13, 2020.  https://www.fool.com/investing/2020/08/13/5-reasons-canopy-growths-q1-report-was-actually-a/

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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