Monthly Archives: April 2016

Responding to Erwin Chemerinsky’s Op-Ed on Marijuana Legalization

By Sam Mendez, Executive Director of the Cannabis Law and Policy Project

There is been much recent discussion, both on this blog and around the country, about the possibility of legalizing marijuana at the federal level (or at least changing it’s current legal status). Beyond simply arguing for or against the idea, there are questions as to how exactly legalization would occur if the day came. Naturally, there is more to it than what initially meets the eye. Earlier today, the Washington Post published an op-ed by Erwin Chemerinsky that points out how legalization will not be as swift or simple as some might think.

Photo credit: Elaine Thompson/Associated Press

Credit: Elaine Thompson/Associated Press

Erwin Chemerinsky is one of the nation’s most respected legal scholars, particularly in constitutional law. He is currently the second-most frequently cited American legal scholar. It would be folly to attempt to pin him down as “pro-” or “anti-” legalization, though he does write in the op-ed, “Like the prohibition of alcohol in the 1920s, the prohibition of marijuana has been a failure.” In 2013, he wrote a very interesting piece in the L.A. Times urging the federal government to respect the laws of Washington and Colorado, which had recently legalized marijuana. In that piece, Chemerinsky argued that these state laws were not necessarily preempted by the federal Controlled Substances Act, which makes possession of marijuana a punishable crime. “Preemption” is a legal doctrine that effectively means where there is a conflict between federal and state laws, the federal laws will carry the day. As Chemerinsky wrote,

The preemption doctrine is based on the supremacy clause of Article VI of the Constitution, which makes federal law “the supreme law of the land” trumping conflicting state laws. The question, then, is whether there is a conflict between the federal government prohibiting small amounts of marijuana and some states not doing so.

He then argued that there is not a conflict when one level of government has a law prohibiting conduct and another level of government does not have such a law. He stated, “a state can decide that certain conduct does not violate state law even if it offends federal law. It is then for the federal government to decide how, if at all, it wants to enforce the federal law.”

In the piece published today, Chemerinsky stated correctly that legalizing marijuana at the federal level will not necessarily make marijuana legal in the entire country, because states may still have laws prohibiting marijuana. He wrote,

Completely legalizing marijuana in the United States would require the actions of both the federal government and every state government. If the federal government repealed its criminal prohibition of marijuana or rescheduled the drug under federal law, that would not change state laws that forbid its possession or sale. Likewise, state governments can repeal their marijuana laws, in whole or in part, but that does not change federal law.

Chemerinsky is correct that a change of laws at one level of government does not necessarily affect the laws of another level of government. He also correctly pointed out the effort government has gone to arrest people for marijuana violations, particularly African Americans and Latinos.

What was not mentioned in this op-ed was the likely subsequent scenario should federal laws change: and that is the inevitability of states following and legalizing marijuana. To be sure, states and localities would be free to prohibit marijuana just as some communities still prohibit alcohol. But the majority of states and localities would probably legalize following a hypothetical federal legalization, simply because of the potential tax base gained from regulating marijuana. Colorado, merely the 22nd largest state by population, raised nearly $1 billion in 2015 in marijuana related taxes. Plenty of arguments can be made against legalizing marijuana, be they moral or health related, but what state could resist those potential taxes?

This is not to say that Chemerinsky is wrong. He is correct to state that legalization will be “much harder than you think.” Still, one must wonder how fast legalization at the state level would pick up steam if the federal government made such a change.

DEA Allows Clinical Study of Cannabis to Treat Veterans

By Jason Liu, second-year stu­dent at the Uni­ver­sity of Wash­ing­ton School of Law. 

Image used under Creative Commons License.

In a surprising move, the U.S. Drug Enforcement Agency (DEA), agreed to allow clinical researchers to study the potential benefits of cannabis on veterans suffering from post-traumatic stress disorder (PTSD). As we discussed earlier, the DEA has taken a more open minded stance towards cannabis by considering a petition to reschedule cannabis. This may be a shift in DEA policy towards cannabis. Continue reading

Reflections on the Cannabis Science & Policy Summit

By Sam Mendez, Executive Director of the Cannabis Law and Policy Project

Earlier this week the NYU Marron Institute of Urban Management hosted the Cannabis Science & Policy Summit, produced by BOTEC. The two-day conference was held in New York City, and was summarized as follows: “With California and other states likely to vote on full cannabis legalization, decisions made in 2016 may well shape the future of cannabis policy for a generation or more. At the same time, scientific knowledge about the effects of cannabis on its users, and of cannabis policies on cannabis use and other outcomes, continues to grow.”

Cannabis Summit

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Something in the Air – Cannabis & Clean Air Policies

By Sam Mendez, Executive Director of the Cannabis Law and Policy Project

Recently, the Washington State Liquor & Cannabis Board (LCB) sent out an email on behalf of the Puget Sound Clean Air Agency (PSCAA), a regional government agency tasked with keeping the Puget Sound’s air clean. The email reminds producers and processors of marijuana in the region that in order to operate they must submit a Notice of Construction (NOC) application to obtain an Order of Approval from the PSCAA.

Cannabis is a very different product from tobacco, with it’s own regulatory structure to boot. But businesses in both industries have to abide by state and federal clean air rules, just as individuals smoking either product have to abide by public smoking rules. In King County, which includes Seattle, use of vaporizers in public is banned as well.

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Credit: Puget Sound Clean Air Agency

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Will the DEA Reschedule Marijuana This Year?

By Sam Mendez, Executive Director of the Cannabis Law and Policy Project

Probably not. Why? Because it would be a momentous change, and it is unprecedented. Many attitudes have changed towards marijuana, including those in power, but has the Drug Enforcement Agency (DEA) changed it’s tune?

Photo is in public domain.

Photo is in public domain.

But it is possible, and the very fact that the DEA said it would consider the question in a memo to lawmakers is significant. Furthermore, the political climate of 2016 might be the time for change. The DEA has not considered a petition to reschedule marijuana under the Controlled Substances Act (CSA) since 2011, when it denied a petition filed by medical marijuana advocates nine years prior. The DEA also considered petitions in 2001 and 2006, which were also denied.

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Cannabis in the EU?

 

By Jason Liu, second-year stu­dent at the Uni­ver­sity of Wash­ing­ton School of Law. 

Image used under the Creative Commons License.

The CLPP Blog has been covering the cannabis policy in North America, and will now look at the European Union. This blog post will briefly review the cannabis policies of the major European nations from a unified EU perspective. Continue reading