Under the federal Controlled Substances Act (CSA) of 1970, marijuana is classified as a Schedule I substance.
By definition, Schedule I drugs have a high potential for abuse and dependency, with no recognized medical use or value. The federal courts have refused to reschedule marijuana. Consequently, any cannabis possession, cultivation, or use is a federal crime, subjecting a defendant to fines, prison time, or both.
However, most federal attention addresses large-scale cultivation and trafficking -transporting or selling marijuana across state lines. Still, pot is illegal under federal law, and state laws that have medicalized and decriminalized cannabis can be overridden by federal law enforcement.
The Obama Administration adopted a policy of living by state laws. What will Trump do? Twenty-eight states have now enacted laws that allow or protect the medicinal and even recreational use of marijuana. Florida joined the fold in November.
Most of these states have decriminalized medicinal marijuana use and removed the risk of criminal prosecution and penalties for patients who follow the law with respect to amounts, registration, and so on. State-level penalties still apply to those who break these state laws.
Obviously, there is a conflict between federal classification under the CSA, which criminalizes all marijuana-related activities; and state medical marijuana laws, which recognize and protect medicinal marijuana cultivation, possession, and use.
It remains to be seen what the Justice Department will do under Attorney General Jeff Sessions. For decades as both a U.S. Attorney for Alabama, and as a United States Senator, he supported, enforced and voted for harsh penalties and legal restrictions for cannabis.
The reality is that if he uses his law enforcement powers to shut down state dispensaries, he will have the right to do so under federal law.
When a state law or regulation conflicts with a federal law or regulation, Article VI of the U.S. Constitution, known as the Supremacy Clause, provides that the laws of the U.S. have supremacy over state constitutions and laws, so that if a state law is in conflict with federal law, federal law trumps, for lack of a better word. That is called federal preemption, and if Attorney General Jeff Sessions decides he wants to crack down on state dispensaries, he will have the power and authority of the law to do so. We can only wait and hope he does not.
If the government goes the route of enforcement, it’s not just dispensaries that have to worry. They can threaten doctors who issue prescriptions, landlords who rent dispensary space to tenants, students on federal scholarships, and you in your own home.
This is a government that has already started raids on immigrants in their households. If it is seeking a legal vehicle to target a non-citizen with immediate deportation, they could argue that the possession and use of cannabis is a breach of federal law.
Trump has not been outspoken on the cannabis issue so far, mostly with equivocal statements supporting state regulations. But he has spoken out about drugs, and if he defers to his Attorney General, pot activists may have a tough road ahead.
To check on the laws in an area where you are concerned, visit www.norml.org