Could the federal government pass a bill to completely legalize marijuana nation-wide? Or would states still need to approve?

Question

Could the federal government pass a bill to completely legalize marijuana? Assuming they get a majority in the house and 2/3 if the senate plus the president’s approval. I know that the “MORE” act wouldn’t do that completely, but say a perfect bill was presented could it get done? Or could states where it’s still illegal deny its legalization. In other words, would the federal government’s legalization override the state’s law.

Answer 1

There are lots of good questions here!

As you know, marijuana is federally illegal. It is a Schedule I controlled substance under the Controlled Substances Act (CSA), which means it’s federally illegal even in states that have thriving legal marijuana markets. The FBI/DEA could raid any dispensary at any time, but they don’t want to and they’ve found various legal loopholes to turn a blind eye and give states and businesses some peace of mind.

The federal government can only control federal law. So Congress and the President could pass a law taking marijuana and THC off of the CSA list of banned substances. But then what?

Then state law would be the only thing left. In the U.S., the states hold any power not given to the feds by the Constitution. So in California, come on down, we’ve got legal weed and we can use banks and do taxes normally now. But in North Carolina, still no growing or selling allowed, because that’s the existing state law. We’d have the same complex checkerboard we do now, just without the federal ban.

There are some wrinkles, specifically that Congress does have an enumerated power to control “interstate commerce.” As you can imagine, pretty much everything in modern times goes through interstate commerce of some kind. Legal debates continue about whether guns, drugs, alcohol, etc. fall under interstate commerce power and if so how much control Congress can exercise. If you want to see how this might play out in reality, take a look at assault weapons. There are very few federal restrictions, so every state (and even many municipalities) has their own laws.

Hope this helps!

Answer 2

States themselves can decide to pass their own state-specific laws and bills that may contradict federal law. When you are in California, it is legal to be in possession of marijuana. By federal law, marijuana is illegal.

This actually makes it both simultaneously. California state authority will not prosecute you, because it is legal there, but the federal government can make the decision to intervene. This is the "supremacy clause" from Article VI of the Constitution.

For example, in 2015 the Supreme Court ruled that same-sex marriage was a constitutional right via the 14th amendment and that states had to respect this (legalizing it everywhere). A government clerk in Kentucky refused to abide by this (per Kentucky state law). Her appeal to the Supreme Court was rejected and she was jailed for violating federal law.