Conflicts of Law Regarding Recreational Marijuana (Cannabis) Laws in the U.S.

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This post is a continuation of the exploration of this subject in an earlier blog post.

The 2016 election saw the voters of 4 states—California, Massachusetts, Maine and Nevada-- elect to legalize recreational use by adults of marijuana in their jurisdictions while the 5th state where the issue was on the ballot, Arizona, voted not to legalize the use. This brings to 8 (the others being Colorado, Washington. Oregon and Alaska) the number of states where recreational use of cannabis has been legalized. (A complete listing of the status of laws regarding cannabis in U.S. jurisdictions can be found here.)

While the growing trend of support in the United States to legalize the recreational use of marijuana is illustrated by survey research, such as this October 2016 Pew Research Report  and Gallup Poll of the same month, marijuana use for recreational purposes remains illegal under U.S. federal law and under the provisions of the international drug control treaties to which the U.S. is party.   Thus, the legal dissonance between federal, international and state law in this area continues to grow.  At some point this conflict of law will need to be addressed either by changing federal law, changing international law (or both), or by the federal government enforcing current federal and international law against the states.

The current situation is that President Obama’s administration has chosen to avoid enforcing existing federal and international law with respect to recreational marijuana in those states which have legalized it, exercising the government’s right to allocate scarce drug trade prevention resources in the most effective way. (See August 29, 2013 Memorandum for All States Attorneys from Deputy Attorney General James W. Cole, “Guidance Regarding Marijuana Enforcement”).  Moreover, the December 2014 law suit that Nebraska and Kansas sought to bring against the State of Colorado to invalidate the legalization of recreational marijuana in that state was not accepted for hearing by the U.S. Supreme Court.

While it is not clear at this point how President Trump’s administration will deal with the existing conflict, it has been speculated that Senator Sessions, who has been proposed as the next Attorney General and has strongly criticized existing policy in the past is unlikely to continue it. However, President-Elect Trump has said nothing definitive on the subject to help us read the tea leaves for exactly how his administration might deal with the issue.  It has been proposed, however, that Mr. Trump may choose not to disturb the status quo.

It seems to me at this point to be equally possible that the federal government will seek to apply existing federal law in those states which have legalized the recreational use of cannabis, or, alternatively, wishing to recognize the inherent States’ Rights issue raised (and possibly to disentangle the country from another multi-national treaty to go its own course), the United States will pull out of the drug control treaties and change federal law accordingly, permitting the legalization (and commercialization) of recreational marijuana use in existing  states and expansion to others without conflict with federal law.

It is also possible but less likely, in my opinion, that the United States will either continue President Obama’s administration’s approach of avoiding dealing head-on with the conflict or, alternatively or in conjunction with the pursuit of that policy, work with the international community to modify the existing drug trade prevention treaties to permit the recreational use of cannabis and effect that modification in federal law.

It will be interesting to see how President Trump’s administration chooses to deal with the issue.

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Sarah Cox
Foreign, International, and Comparative Law Librarian,UConn Law

Sarah Cox is the foreign, international and comparative law subject specialist in the Law Library.  She is the primary library liaison for the LL.Ms in the U.S. Legal Studies program, for the members of Connecticut Journal of International Law and the other J.D.s who take foreign and international law courses, as well as carrying out regular reference department duties.  Sarah received her J.D. from UCONN Law, her Masters in Library and Information Studies and a Certificate in Bibliography from the University of California, Berkeley, and holds a B.A. and M.A. in European History.