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State v. Federal Showdown Over Marijuana Laws

By Christopher Coble, Esq. on February 27, 2017 | Last updated on March 21, 2019

The inherent tension in the recent trend to legalize recreational marijuana at the state level is that the drug remains an illegal substance at the federal level. Up until now, the Department of Justice has taken a hands-off approach to marijuana enforcement, trusting "state and local authorizes to address marijuana activity through enforcement of their own narcotics laws."

But that could all change under the new presidential administration. Last week, White House spokesman Sean Spicer said the Justice Department under President Trump may step up enforcement of federal laws against recreational marijuana use.

Up in Smoke

"I do believe you'll see greater enforcement of it," Spicer told the press regarding federal marijuana regulations. "Because again there's a big difference between the medical use ... that's very different than the recreational use, which is something the Department of Justice will be further looking into."

While Spicer distinguished medicinal marijuana use, saying "the president understands the pain and suffering that many people go through who are facing especially terminal diseases and the comfort that some of these drugs including medical marijuana can bring to them." But he linked recreational pot use to opioid addiction:

"I think that when you see something like the opioid addiction crisis blossoming in so many states around this country the last thing that we should doing is encouraging people, there's still a federal law that we need to abide by in terms of ... when it comes to recreational marijuana and other drugs of that nature."

Coupled with the appointment of long-time legalization opponent Jeff Sessions as Attorney General, Spicer's comments could indicate a looming showdown between state and federal drug enforcement.

Puff, Puff, Pass, Prosecute

Whenever there is a conflict between federal and state laws, federal law trumps. And marijuana is a Schedule 1 drug under the federal Controlled Substances Act, meaning possession and sales of pot, for any use whatsoever, remain illegal under federal law. And while the federal government can always decline to challenge state legalization efforts, it would also be well within its legal rights to crack down on marijuana cultivation and distribution.

That might not be the most popular move on the new administration's part however. A recent Quinnipiac University poll showed that over 70 percent of Americans say the federal government should not enforce federal drug laws in states that have voted to legalize it for recreational or medicinal use. Additionally, refusal to recognize states rights on an issue like marijuana might not jibe ideologically with the Trump administration's deferral to states on topics like transgender rights.

But just because the feds haven't yet taken more enforcement action countering state and local marijuana legalization doesn't mean they won't.

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