With so much political and social momentum, it may seem like marijuana is on a roll right now — and it totally is. But there's still one big hurdle to jump: Even if cannabis is legal at the state level, it's still illegal at the federal level. And that tension is making our transition to a new administration even more confusing — and terrifying for marijuana advocates.
All of this goes back to the Controlled Substances Act (CSA), passed in 1970, explains Amanda Reiman, manager for marijuana law and policy at the Drug Policy Alliance. "The CSA placed drugs into schedules based on how dangerous they were, whether they had any medical value, and how addictive they were," she says. "They didn't know where to put marijuana."
At the time, President Nixon recommended putting marijuana in schedule 1, the most restrictive level, which indicated that it had no medical use and a high potential for addiction. Years later, of course, the world learned that Nixon's main reason for the recommendation was that he thought that would make it easier to arrest antiwar protestors and black people.
So, with the mounting evidence that marijuana does have real medical benefits and the revelation of the racist idea behind the drug's original schedule placement, you might think we should just, you know, re-schedule it, right? Well, that's much easier said than done.
"The catch-22 of schedule 1 is that, because schedule 1 drugs are deemed to not have any medical value, we're really restricted in the research we can do on them," Reiman says. By federal government logic, there's no reason to give researchers money to look into cannabis because schedule 1 indicates that it has no medical value. But that makes it nearly impossible to conclusively prove that it does have any value, and get it out of schedule 1.
Even more confusing than that, though, is that the purview of various aspects of drugs has gone back and forth between federal and state governments. Traditionally, the federal government gets to decide what is and isn't legal, but how severely we want to punish people for more minor violations of those laws has been up to individual states. That means that, even if marijuana is illegal at the federal level, states may have the power to decriminalize possession, for example.
"What is not up to the states ever is whether or not a drug is legal," Reiman says. "But that was challenged with Colorado and Washington in 2012 — they became the first states to pass by voter initiative the fact that adults could legally use marijuana in those states and they could license the commercial sales of marijuana, which was in direct violation of all the history of the federal government."
So recent marijuana legalization has really blurred those historical dividing lines. Essentially, all of the state marijuana programs — both medical and otherwise — only exist at all because the federal government is allowing them to exist. And there's really no guarantee that the federal government will continue to respect those states' decisions. "Nothing says the states have the right to make these decisions — that's the conflict that still exists," Reiman says. "If the federal government decides they want to enforce schedule 1 status of cannabis, regardless of what the state wants, they have the right to do that."
That's why marijuana advocates are so nervous about the surprises the oncoming Trump presidency may bring — especially the potential confirmation of notoriously anti-marijuana (among other things) Senator Jeff Sessions as Attorney General.
It's also why we still have to have a disclaimer on all of our marijuana-related articles — even if you're living in a weed-legal state, that's not a guarantee that marijuana is actually legal. Hey, we're just looking out for you.
This month, we’re celebrating High January by leaving our stoner stereotypes behind. Instead, we’ll take long-time smokers and total newbies through the various complexities of the current cannabis world. It’s 2017 and we’re ready to blaze a new trail.
(Refinery29 in no way encourages illegal activity and would like to remind its readers that marijuana usage continues to be an offense under Federal Law, regardless of state marijuana laws. To learn more, click here.)