The debate as to whether or not to legalize marijuana in America has been heavily documented. Different states have different laws pertaining the vice. The fact that it is used both for medicinal and recreational purposes makes it difficult for the government to ban it. In the past few years, the marijuana debate has constantly featured in legal and legislative controversies. Different states seem to adopt different approaches over the issue. At the moment, marijuana is legalized in more than 20 states, including the District of Columbia. It would be prudent to note that such legalization is restricted to medicinal use of the drug (Brody, 1996). States such as Washington, Oregon, Alaska and Colorado have moved a notch higher to regulate the production and sale of the substance for recreational purposes. This is in conflict with the federal law which classifies marijuana as an illegal substance, hence prohibited. Because of this conflict, companies that may intend to deal in the production and supply of marijuana find themselves in a dilemma. In addition to the companies, the individual users of the drug find themselves in a position where they do not understand the legal implications of using the substance. There is a need to have a deep understanding of the states’ regulatory structures and tax regimes over this issue. This paper seeks to examine and analyze the literature and laws that relate to the production, distribution and use of the substance in the United States of America. This is necessary in order to have a clear understanding on the regulatory process and the limits that are put in place. In addition, companies that intend to invest in this substance will be in a position to make informed choices as to when and where to invest (Voters in several states reject marijuana legalization efforts, n.d).
The Federal Government Position on Marijuana
The Federal Law explicitly bans marijuana and classifies it as an illegal substance. To effect this, the federal law has in place numerous legislations. Such legislations date back to the year 1937 when the substance was officially banned. Morgan Fox (Marijuana Project Communications Manager) argued that such a ban was based on the negative impacts that the substance had on humans, as opposed to the benefits which were negligible. Fast forward to the year 1970, the federal government classified cannabis in the Controlled Substances Act as illegal. Specifically, marijuana was classified as being a Schedule 1 drug (Chu, n.d). Substances that are classified under this schedule are thought to have no medicinal value, and that they can be abused easily. The enactment of this legislation provided the legal structure within which users of the drug could be charged. At the time, this helped clear the wind, as it became apparent that the substance was illegal.
Despite this legislation, there have been constant attempts to repeal this law. Despite the fact that the federal law has outrightly prohibited possession of marijuana and its commercial use, a section of legislators in the congress have made it clear they want the law to be reviewed in order for the substance to be legalized. These legislators intend to ensure that marijuana is removed from the schedules of the Controlled Substance Act, in order to make its production, supply and use legal. This intended change also seeks to push the federal government to permit companies and businessmen to import, manufacture and sell cannabis from one state to another. This has raised eyebrows, because of the two rival factors.
Under the federal government, the Drug Enforcement Administration has the jurisdiction to enforce actions that are contrary to what the law states (Reuter, 2014). The intended changes would see this jurisdiction be given to the Bureau of Alcohol, Tobacco, Firearms and Explosive. In the year 2015, there was introduced in the Congress the Marijuana Tax Revenue Act. This Act would seek to tax all marijuana products. All these are indicators that America is headed towards legalizing marijuana to be considered as a legal substance, as opposed to an illegal one. Regardless, no action has been taken about the bills.
States that moved away
Despite the federal government clearly banning and classifying marijuana as an illegal substance, several states have slowly moved away, legalizing the use of marijuana. Such a move has been through legislation and judicial precedents. Today, more than twenty states have legalized marijuana, contrary to the letter and spirit of the federal government. Such a move was initiated by California in the year 1966 (Cohen et al, n.d). In this year, the state of California legalized marijuana insofar as its medical use was concerned. This gave other states an opportunity to develop their own legislations on the production, supply and use of marijuana. Today, marijuana is retailed freely in more than twenty three states. This constant increase in the number of states that have legalized marijuana points to a time when the substance will be legalized in the entire country. There is a potential legal conflict between the federal government and the states over the correct position of the legality of marijuana.
The District of Columbia is the latest that has made attempts to restructure its legislation to legalize marijuana. In the year 2014, for instance, the District of Columbia introduced a ballot initiative, with the intention of legalizing cultivation and possession of marijuana (Oglesby, n.d). This initiative was passed. This move would however be thwarted by the Congress which effectively stated that the use of marijuana in the District of Columbia is prohibited. Despite this being the case, there are numerous attempts to ensure that the same is effected.
The conflict between the federal government and the states
As already argued, there is a conflict of laws as relates to the use and possession of marijuana. The federal government position is that marijuana is an illegal substance, hence its use and possession is prohibited. States, on the other hand, have legislated laws that have legalized the possession, use and sale of marijuana. As a result of this, there has been a conflict as pertains to the law that should be used. In the recent past, this has led to judicial litigation. This has made it difficult for consumers and retailers to understand the correct position that they should adopt.
Such a conflict of laws saw the Supreme Court requested to give an advisory opinion in the case of Gonzales v. Raich (2005). In this case, the Supreme Court ruled that the congressional prohibition of the cultivation, use and possession of marijuana for purposes that are non-commercial was protected under the commerce clause, hence legal (Earleywine, 2003). A keen analysis of this ruling shows that the court’s ruling was restricted to the possession and use of marijuana exclusively for purposes that are non-commercial. This was not the position in a previous case, United States v. Oakland Cannabis Buyers’ Coop (2001). In this case, the Supreme Court ruled that there were no exceptions based on medical necessities to the ban of marijuana. Here, the court opined that marijuana was illegal, regardless of the purpose it served. The two cases above show the existing conflicts of the law on this issue. The main players in the conflict are the states versus the federal government.
Despite the above conflict between the federal government and the states, it would be wrong to think that there are no inter-state conflicts over the same. Various states have sought legal redress over the same issue (O'Brien, 2015). There is an increase inter-state litigation. In December 2014, for instance, the attorney generals of Nebraska and Oklahoma filed a case in the Supreme Court against the state of Colorado (Oklahoma and Nebraska v. Colorado). In their submissions, the two applicants argued that the legalization of marijuana in Colorado had led to the two states suffering directly. They further argued that the move by Colorado to legalize marijuana had led to the law enforcement authorities being overworked and the available resources being over-spent. Their submissions were premised on the argument that marijuana from Colorado (legalized) had found its way into their jurisdictions, despite their laws prohibiting its use. With this move, their prayers were that Amendment 64 of Colorado be declared unconstitutional, requiring Colorado to illegalize the use and possession of marijuana. Regardless, a number of states have rallied behind Colorado to support its move to legalize marijuana (Giuliani Calls Medical Marijuana Stealth Legalization, n.d). Oregon and Washington, for instance, filed an amicus with the intention of supporting Colorado in the case. The existence of such conflicts between states is a threat to the national cohesion.
Regulatory issues as a result of legalizing marijuana
Despite the fact that several states have legalized the use, possession and sale of marijuana, there are a number of issues that work against this move. Several institutions, for instance, have regulatory structures that do not support activities related to the possession or sale of marijuana. The regulations of the federal bank, for instance, has made it impossible for marijuana businessmen to access funding, unlike other businessmen. The ability to carry their tasks efficiently has, as a result, been threatened by the strict regulatory policies of other federal and state institutions (Marijuana Legalization is an Opportunity to Modernize International Drug Treaties, n.d). However, not all regulatory issues have brought about conflicts. Such issues are as discussed below.
Licensing
States that have legalized the use, possession and sale of marijuana have in place a mechanism through which they license the operator in order to monitor the use of marijuana. In Colorado, for instance, the state Department of Revenue is mandated by Amendment 64 to come up with regulations that will help implement the legalization of the substance. Because of this, there was created the Marijuana Enforcement Division. This division would regulate how marijuana is retailed in Colorado. Specifically, it is tasked with licensing the marijuana business in the state. Licensing is done periodically in order to effectively monitor the activities that people engage in when dealing with marijuana (Hickenlooper, 2014). Other states that have legalized marijuana have their regulatory bodies in charge of licensing, consistent with their individual legislations.
Banking
This is where there is a major conflict between the federal government and the states. The Controlled Substances Act (Title 21) makes it illegal for any person or company to manufacture, dispense or distribute a controlled substance. Schedule 1 of the same Act classifies marijuana as a controlled substance. Banks have constantly found themselves entangled in this dilemma, whether to follow the federal government position of illegalizing the substance, or the directives of the states where the substance is legalized.
Currently, there is a risk that banks that associate with the marijuana industry could be found guilty under the federal laws for aiding and abetting. The strictness of the federal laws and the lack of a common position has proved to be a major challenge to the banks, because they are divided as pertains to the correct position they should adopt (Kilmer, 2016). The federal government has laws that allow law enforcers to seize properties that are marijuana-related. Such properties may include bank accounts. This poses a major risk to the banks, because they could end up losing a lot of money to the federal government through civil forfeitures. As a result of this, many banks have distanced themselves from being associated with marijuana businessmen. This is despite the legalization of the marijuana business in most of the states. As such, many banks fear taking the risk. This has worked against the businessmen who intend to take part in the industry (How Might Marijuana Legalization in California Affect Public Budgets and Marijuana Consumption., n.d).
Medical purposes of marijuana
Despite marijuana being classified as an illegal substance, there is no doubt whatsoever that it can be used for various medical purposes. Legalization of the ‘medical marijuana’ was the first move that led to the widespread legalization of the substance. From one state to the other, the characteristics of programs related to medical marijuana vary. This depends on the available laws that relate to the sale and possession of the substance.
At the moment, the Congress has two bills which relate to medical marijuana. In order to bring to an end the long-standing conflict between the states and the federal government, there was introduced the Compassionate Access, Research Expansion and Respect (CARERS) Act. The intention is to delist marijuana from Schedule I to Schedule II. The bill will also redefine the definition of marijuana under the Controlled Substance Act. The aim of redefining it is to exclude cannabidiol, giving people who use marijuana for medical purposes and opportunity to enjoy it. In addition to this, the bill seeks to give the federal banks a leeway to engage marijuana-related businessmen and funding them without fear of being prosecuted, provided such businessmen engage in activities that are within the law (Khalsa, 2013). As a matter of fact, this will force the banks to undertake due diligence practices to ensure that they only fund businessmen who comply with the law.
Conclusion
In the history of the United States of America, few issues have proved to be as divisive as the marijuana debate. The opponents and the proponents alike give their reasons as to why the substance should be legalized, or why it should not. Initially, the move to legalize it was seen by many as a wrong one. When California legalized marijuana in 1966, there was a backlash from other states (Kamin, 2012). This is not the case today, as 23 states have followed heed to legalize it. Much as the federal regulations and laws have complicated the matters as pertains to legalization, there is no doubt that the legalization process is increasing by the day. More and more states are considering legalizing it. The federal government should change its policy and loosen the rules to allow states legalize marijuana. With time, there is no doubt that marijuana will be legalized by the federal government.
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