As a matter of federal law, yes, cannabis will be descheduled entirely if the MORE Act becomes law. And not only that, but all federal marijuana convictions will be expunged
We have spilled a good bit of ink on this blog writing about the MORE Act (Marijuana Opportunity and Expungement Act) which is finally headed to a floor vote in the House, probably tomorrow, December 3. The MORE Act ends federal marijuana prohibition and the criminalization of cannabis by descheduling marijuana from the Controlled Substances Act (CSA).
That would be great, of course. Assuming the House version (HR 3884) passes, it will be crucial for the Senate version (S 2227), sponsored by Vice-President-Elect Kamala Harris, to also see daylight in the upper chamber. My guess is it won’t, unless both Democratic candidates prevail in the Georgia runoffs this January, resulting in Mitch McConnell’s replacement as Senate Majority Leader.
But that’s a question for another day. For now, I want to highlight what would happen if the MORE Act does become law someday soon, because I’m seeing some bad information out there. The biggest point of confusion seems to be the idea that if the MORE Act passes, cannabis will become legal nationwide. It won’t. As a matter of federal law, yes, cannabis will be descheduled entirely. And not only that, but all federal marijuana convictions will be expunged — even the folks who were captured with many tons of cannabis in helicopters and submarines. But state laws will not be preempted in the least.
Does this mean someone could still be arrested for walking around with an ounce of cannabis in e.g. Boise, Idaho, the day after the MORE Act becomes federal law? Yes it does! And that’s a shame, because most cannabis arrests today are for simple possession, and most are made under state laws and by state police.
Close to four years ago, I explained on this blog that the federal government probably does not have the power to shutter state cannabis programs. Aside from the fact that the CSA contains express “anti-preemption” language, the Tenth Amendment of the U.S. Constitution provides that the federal government cannot “commandeer” states by forcing them to enact laws in the federal interest. That’s true in the cannabis prohibition context, and it will also be true once the feds give a green light to cannabis, under the MORE Act or otherwise.
If the MORE Act passes, what we will see is a flip of the current marijuana policy gap. Federal agents will no longer track or arrest cannabis traffickers, but state police sure could. We will be left with a patchwork of state legality, set against a permissive federal backdrop (with a 5% federal tax). And a million wrinkles to iron out.
It’s true that the feds will have some tools for dealing with prohibitionist locales once the CSA is amended. The best option is probably for Congress to preempt state law through Commerce Clause legislation, as it did with the 2018 Farm Bill for interstate transportation of hemp. It seems late for that in marijuana, though, with so many states so far down the road with cannabis licensing programs. The MORE Act steers clear of federal licensing altogether, perhaps for this…
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