By Silvan Schuttner, first-year student at the University of Washington School of Law
Image used under the Creative Commons Zero License
The states that have legalized cannabis—as a matter of state law—have generally been allowed to operate without much federal involvement. However, transportation of state-licensed and produced cannabis to other states is beginning to change that. Cannabis remains illegal under federal law, regardless of changes in any particular state’s laws, and federal law also prohibits transporting Schedule I drugs across state lines under the Controlled Substance Act. Why is this now an issue when it hasn’t been much of a problem in the past? The answer: a confluence of rising cannabis overproduction and interstate transportation have combined with the tension between state and federal law.
A potential increase in federal attention on cannabis may result from Attorney General Jeff Sessions rescinding the Cole memo, which had been a guide for states to limit federal involvement. However, preventing cannabis from crossing state borders was one of the “particularly important” enforcement priorities for the federal government laid out in the Cole Memo. Making it crucial for states to find a way to address this issue.
Due to an overproduction of state-legal cannabis, the black-market in states that have yet to decriminalize or legalize is attracting some of the excess cannabis. As was feared from the outset, states with state-legal cannabis regimes seem to have indeed become an easy source to supply black-market demand in non-legalized states. Washington sought to limit production to only enough cannabis and derivative products to satisfy in-state legal markets. California attempted to address this problem with laws against taking cannabis out of the state. Of course once cannabis leaves a state there is little that state can do to prosecute. The fact that state legal cannabis is finding its way to other states where it is still illegal is driving federal prosecutors to focus on the issue.
Overproduction in states such as Oregon has brought up a question about the state’s ability to deal with the regulatory process alone. As US attorneys try to figure out how to proceed with this problem, a continued increase in cannabis crossing state borders could garner more attention and subsequently federal enforcement. It is difficult to predict how federal involvement would manifest, if at all, but it is all but certain if states continue to struggle controlling production and transportation out of state.
Overproduction and interstate transport is an example of the challenges around a bottom-up approach to legalization. Issues that states which have legalized cannabis face will require a careful, considered approach. It’s true that being at the vanguard of change is difficult, but hopefully this is a problem that the states can solve without too much federal directive.