Ethan Brown ‘25
Staff Editor
On October 6, the Federalist Society at the University of Virginia School of Law hosted Professor Jonathan Adler of Case Western Reserve University School of Law to discuss the legal status of marijuana in jurisdictions across the United States and offer a framework for how federalism should guide evolving discussion on the topic.
The event, which offered free Mellow Mushroom pizza to attendees, began with Professor Adler giving a brief overview of marijuana’s decriminalization and legalization in different states since the 1990s.[1] Since California first legalized marijuana for medicinal purposes in 1996, an additional thirty-six states and the District of Columbia have followed suit by permitting either recreational or medicinal marijuana usage. Of those, nineteen states and D.C. allow recreational marijuana. Professor Adler noted that the number of states permitting recreational use is likely to increase in the very near future, with both Maryland and South Dakota poised to potentially legalize recreational weed in referenda next month.
Despite shifts in public opinion suggesting rapid increases in the percentage of Americans who approve of legal weed, Professor Adler emphasized the central conflict inherent in modern marijuana legalization: The drug is still illegal for purposes of federal law. Federal illegality has far-reaching effects, especially in areas of banking, firearm background checks, and employment clearances.
Professor Adler said the tension between state and federal legality is, at times, volatile and messy.
“This situation is, in some respects, less stable, and certainly for those of us in the legal profession, more precarious . . . because even though there is not routine federal enforcement of marijuana laws, the mere fact that marijuana is illegal under federal law has far-reaching effects on other areas,” Professor Adler said.
Professor Adler pointed out two spheres—banking and legal counsel—where the federal prohibition of marijuana has impaired states’ ability to set up dispensaries within their borders. Any bank contact with transactions related to the sale or production of marijuana could be interpreted as supporting illegal activity in the eyes of the federal government; therefore, states have had to rely on local credit unions, which are not federally regulated, in order to finance the industry. This adds a significant obstacle to dispensaries and other marijuana-related businesses trying to set up shop, even in states with recreational usage.
Conflicting professional obligations for lawyers and other advisors also hinder these businesses’ operation. While lawyers are obviously able to counsel those convicted of a crime, they cannot advise their clients on how to engage in prospective illegal activity—and advising dispensary owners how to produce or sell marijuana would constitute an illegal act under federal law. This tension puts both sides—marijuana-related business owners and lawyers—in an uncomfortable position.
Besides ramifications for states as they attempt to implement legalization, Professor Adler also pointed to employment clearances as an area of concern for the drug’s continued federal illegality. Some people who used marijuana in legal jurisdictions have been surprised to see federal employment offers and security clearances affected by that usage, a phenomenon seen as high up as the White House.
“It’s still a question you get when you have a security clearance, as some would-be appointees to the current administration discovered, to their chagrin,” he said.
Professor Adler noted that there have been some steps towards a modest relaxation of the federal ban. In 2009, then-Deputy Attorney General David Ogden issued a memorandum clarifying the federal government’s decision to prioritize marijuana-related prosecutions involving drug trafficking and sales to children, and this memo was renewed throughout the Obama, Trump, and Biden administrations. Last year, a federal research grant for medical marijuana was granted, the first one since 1968.[2] And perhaps most significantly, the day of Professor Adler’s talk, President Biden announced a pardon of all prior federal offenses for simple possession of marijuana.[3]
Still, these slow changes will not solve the tension between federal and state governments overnight. That task, Professor Adler said, can be tackled by employing principles of federalism.
“At the end of the day, I think federalism has a lot to offer us in marijuana policy, both in terms of allowing people to live under the laws that they want, but also in helping us learn what sorts of laws related to marijuana would make the most sense,” he said.
Professor Adler said one potential way for federal and state governments to coexist on marijuana is to treat the drug just like alcohol. He said that marijuana could be handled just as alcohol was at the end of Prohibition, when the federal government took itself out of the legalization process and instead opted to enforce boundaries between so-called “wet” and “dry” states that made their own independent decisions on legalization.
Ultimately, Professor Adler said that a federalist approach would empower states and local jurisdictions to experiment with different policies that work for their specific circumstances. Then, these lessons could be applied to other areas of the country or discarded in favor of more compatible policies. It would also give jurisdictions the opportunity to test ways of combating some of legalization’s possible ill effects, including minors’ increased access to the drug and potential risks to public safety.
“Part of the point of federalism is to allow jurisdictions to try things, and some of those things will be mistakes. But we learn from them, and we ultimately get better policy as a consequence.”
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bwj2cw@virginia.edu
[1] Kudos to the clever person who chose Mellow Mushroom—whose signature mushroom mascot looks high as hell—to cater an event about weed. (The decision to have pizza also fit the bit well).
[2]https://www.npr.org/sections/health-shots/2021/05/30/1000867189/after-50-years-u-s-opens-the-door-to-more-cannabis-crops-for-scientists
[3]https://www.whitehouse.gov/briefing-room/statements-releases/2022/10/06/statement-from-president-biden-on-marijuana-reform/