In anticipation of what seems like inevitable marijuana legalization, Congress is introducing legislation attempting to end the futile federal prohibition of pot. Now that a majority of Americans support legalizing all forms of cannabis, politicians from both parties, from Sen. Elizabeth Warren (D-Mass.) to Rep. David Joyce (R-Ohio) are endorsing the STATES Act — a bill that would legalize practically all marijuana-related activities at the federal level, at least where they are permitted by state law.
Even though this bill offers a long-awaited sign of sanity that has long been absent in the drug war debate, it still leaves much to be desired. Instead of outright legalization of marijuana at the federal level, the law instead cedes federal legality only if the behavior happens in a state that has legalized it. And marijuana would foolishly remain an entirely prohibited Schedule I narcotic under all other circumstances.
Given the STATES Act’s unusual bipartisan support, the media has speculated endlessly on the implications of its potential ratification. But the truth is that this bill is incredibly vague and would elicit many contradictions between state and federal laws, likely leading to a plethora of bureaucratic challenges.
The Capital Research Center’s Michael Watson derides the bill as a Colorado cannabis industry conspiracy to restrict competition by outlawing interstate marijuana trade, although the bill never explicitly discusses interstate commerce. In fact, if states border each other and all permit the transportation of marijuana across state lines, the language of the bill seems to protect the activity as long as the marijuana stays within those jurisdictions. However, transporting Schedule I narcotics like marijuana across state lines in other states would remain a felony, and this state-level exemption is likely to be challenged by the Drug Enforcement Administration, which has a history of neglecting state marijuana legalization efforts.
But the trickiest and most consequential consideration will be how this law affects the possession of firearms. Since 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has made it clear that marijuana users — even those with a medical prescription — cannot possess firearms. The language of the STATES Act makes marijuana consumption legal in compliant states, and since the ATF currently cites marijuana’s federal illegality as justification to suspend gun rights, it seems (sober) use of firearms by marijuana users in some states would finally be permitted. Otherwise, law-abiding gun owners who consume cannabis have long-awaited the opportunity to be honest about their habits, but again, expect an immediate ATF challenge.
The law also only protects against actions that don’t “violate the Controlled Substances Act with respect to any other substance.” Meaning if someone possesses marijuana and illegally possesses another controlled substance like cocaine, even in a state that allows marijuana possession, federal penalties regarding marijuana can still be applied by prosecutors. This addition would not affect most marijuana consumers, but it is unjust to use an otherwise legal activity as justification to increase the sentencing for crimes that already carry disproportionate punishment.
These clumsy examples only expose the archaic scheduling regime. But since overhauling the Food and Drug Administration (FDA) is not politically practical, Congress should instead introduce legislation that addresses the unique concerns of marijuana.
First, it should completely deschedule the marijuana plant and allow states to regulate it like other recreationally available drugs, such as tobacco and alcohol. Second, it should call on the FDA to appropriately schedule marijuana derivatives that have passed clinical trials to cure diseases, such as Epidiolex, which was certified to relieve severe seizures in children. The STATES Act is not sufficient to address these regulatory needs, but at least it won’t leave a legacy of clumsy regulation.
In fact, the bill contains a single proposal that almost all can support — a provision that “the Comptroller General of the United States shall conduct a study on the effects of marihuana legalization on traffic safety: The study conducted under subsection (a) shall include a detailed assessment of traffic crashes, fatalities, and injuries in 17 States that have legalized marihuana use, including whether States are able to accurately evaluate marihuana impairment in those incidents.”
This is reasonable, because the unique nature of marijuana impairment has prompted the Centers for Disease Control and Prevention to admit “it is unclear whether marijuana use actually increases the risk of car crashes” and the study would be completed within a year of enactment.
The STATES Act at least shows that the political conversation surrounding cannabis has finally matured. Unfortunately, the actual bill is little more than a bipartisan virtue signal from Congress. Democrats would get to say they legalized marijuana and Republicans would get to say they respect powers reserved to the states, without either really being completely true. And Congress will invite itself many opportunities to pass bipartisan legislation to address the plethora of federal and state-level regulatory contradictions that will follow after the bill is passed. In order to avoid the political circus and conundrums, it might be best to leave rescheduling to the executive branch.
A version of this column first appeared in The Hill.