People looking to legalize cannabis nationally got a welcome surprise late last month when Supreme Court Justice Clarence Thomas questioned the constitutionality of federal marijuana bans.
The opinion of one of the court’s most conservative judges doesn’t change federal law, but it came in a year when states seem to be fighting each other over licensing and regulation of some form of legal cannabis. As of March 1, five states passed or enacted laws to legalize cannabis. As of July 1, recreational marijuana was legal in 18 states and medical marijuana in 36.
And that’s only part of the dynamic that suggests state cannabis laws could be changed. Last year, House Democrats passed a law to legalize cannabis – the first time federal lawmakers approved such a proposal – but it was blocked in what was then the GOP-controlled Senate. This year the Democrats control both houses of Congress.
All of this adds to the growing optimism of many cannabis rights advocates that state legalization may indeed be on the horizon.
“I’ve always said that state legalization is not an ‘if’. It’s always been a ‘when,’ ”said Adam Wilks, managing director of Irvine-based cannabis retail chain One Plant and Canadian investment firm Captor Capital. When Wilks read Thomas’ statements (published June 28) supporting state rights over cannabis, he said, “A lightbulb went out in my head. The moment is finally here. “
If cannabis is legalized nationally, the change could have great benefits for both industry and consumers, even in states like California, where marijuana is already legal for all adults.
Uruguay and Canada were the first two nations to legalize adult cannabis. On Monday, Mexico’s Supreme Court voted to decriminalize personal use and possession, a move that is putting pressure on the country’s lawmakers to approve regulations that allow cannabis to be sold in what will become the world’s largest legal market.
Although 91% of U.S. adults this year told Pew pollers that cannabis should be legal, at least for medical use, federal law still classifies the drug as a List I narcotic. This is a category reserved for drugs like heroin that are said to be highly addictive and of no medicinal value, although more and more research shows that neither is true of cannabis.
Last year the Democrats in the House of Representatives passed a bill that would have put cannabis completely off the schedule, but it never got off the ground in the Republican Senate. In May, Rep. Jerry Nadler, D-NY, reintroduced the MORE Act. And last month, retail giant Amazon, among others, said it would lobby for the bill. (Amazon also said it would stop testing many of its 1.3 million workers for cannabis.)
But even some Republicans who support state legalization have spoken out against provisions in the MORE Act, such as a federal tax that would support social justice programs related to cannabis.
President Joe Biden did not help move the needle. While expressing his support for medical marijuana rights and decriminalization, he has stopped calling for full legalization.
Meanwhile, more and more states are shaking the federal ban and approving their own regulated cannabis programs, with added momentum as governments seek ways to create new jobs and revenue streams in the face of COVID-19.
Recreational cannabis laws went into effect in New Mexico on Tuesday. Similar laws went into effect in Virginia and Connecticut on Thursday, while South Dakota began licensing medical cannabis on the same day.
The discrepancy between federal politics and what is happening in the states was highlighted by Thomas in his statements on the cannabis law.
“The federal government’s current approach is a half-in, half-out regime that both tolerates and prohibits local marijuana use,” wrote Thomas. “This contradicting and unstable state of affairs weighs down the basic principles of federalism and hides traps for the unwary.”
Thomas ended by saying that a federal ban “may no longer be necessary or appropriate”.
Still, Bracken describes it as “wishful thinking” for the cannabis industry to read too much into what he says.
For cannabis farmers in California – which is believed to be home to some of the best cannabis strains in the world – exporting their product outside of the state would increase their revenue and state tax revenue.
“It will be groundbreaking as soon as we can cross state borders with cannabis products,” said Wilks.