Get the feds out of the way of cannabis reform

The House just took a huge step toward repealing the marijuana prohibition. What’s next?

by Paul Armentano

Wednesday, December 9, 2020


When it comes to marijuana policy, it’s time for the federal government to get out of the way.

Fifteen states, home to 25 percent of the U.S. population, have legalized the possession and use of marijuana by anyone over the age of 21. Most states now allow some form of medicinal use.

Federal law, which mandates that possessing any amount of cannabis is a criminal offense, is woefully out of sync with these policies. Each year, this chasm between state and federal policies grows wider.

This past election, voters in five states approved ballot measures legalizing adult-use marijuana production and sales. This coming year, several more are anticipated to do likewise.

Finally, it appears that members of Congress have taken notice.

The House has voted to approve the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, which removes cannabis from the federal Controlled Substances Act.

By repealing the federal prohibition of marijuana, the MORE Act would eliminate the state-federal conflict and authorize states to establish their own cannabis laws.

The decision was historic — it marked the first time in 50 years that a chamber of Congress has ever voted to reconsider the prohibition of marijuana under federal law. But it’s not without precedent.

Nearly a century ago, the federal government made a similar decision when it repealed the federal prohibition of alcohol. Then, much like today, politicians recognized that prohibition was a politically unpopular policy that was running afoul of a growing number of state laws.

Their solution? Respect the 10th Amendment of the U.S. Constitution and empower states, not the federal government, to be the primary arbiters of alcohol policy. Today, the House has wisely recommended that the federal government forge a similar path on cannabis.

Notably, and frustratingly, this common-sense decision was a strikingly partisan one. Of the 228 members who voted for the bill’s passage, only five were Republican.

This partisanship at the federal level is inconsistent with voters’ sentiments. Among the public, broad majorities of Democrats, Republicans, and independents all support an end to prohibition.

An even greater percentage of Americans oppose the federal government’s interference in states that have already made the decision to legalize marijuana for either medical or recreational purposes.

But although GOP leadership in the Senate is not expected to take up the issue this year, pressure is growing from many conservative voices. “The fact that Republicans have been wrong on marijuana for a very long time is no reason for them to keep being wrong,” wrote the editors of the conservative National Review.

Meanwhile, the number of traditionally red states with legalization regimes is growing rapidly. In just the past four years, Arkansas, Mississippi, Montana, North Dakota, Oklahoma, and South Dakota have all enacted statewide versions of either medical or adult-use legalization.

Republican officials in these states have an obligation to represent their constituents — and to protect the millions of voters who use cannabis consistent with state law or are employed by state-licensed cannabis operators.

The incoming Biden-Harris administration may also push for marijuana law reform. Harris was the lead sponsor of the MORE Act in the Senate, and Joe Biden pledged on the campaign trail to “leave decisions regarding legalization for recreational use up to the states.”

By selecting an attorney general who shares this hand-off approach and directs U.S. attorneys not to interfere in states with legal marijuana, the administration could set the stage for a long-overdue legislative showdown in 2021.

As former Supreme Court Justice Louis Brandeis famously opined, “A state may, if its citizens choose, serve as a laboratory.” Our nation’s federalist principles demand that Congress respect voters’ decisions on cannabis — and repeal the failed policy of federal prohibition.

Paul Armentano Paul Armentano is the Deputy Director of the National Organization for the Reform of Marijuana Laws (NORML) and the Science Faculty Chair at Oaksterdam University in Oakland, California. This op-ed was distributed by

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