Is Marijuana Really Legal? What Should I Know?


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Marijuana has made headlines for the last few years in a new and, to some, unexpected way. Rather than reports of massive drug busts and seizures, the latest news has been about more and more states legalizing the drug. But, this has led many to rightly question just how legal marijuana really is. Has the federal government legalized it? If not, do states have the right to make the drug legal? Is this change permanent?

Federal vs. State Question

The first issue is the troubling problem of jurisdiction. Federal laws trump state laws, thus a law issued by the U.S. Congress will take precedence over one issued by a state's legislative body. This is also true of administrative laws, executive orders, and other forms of federal regulation.

As a result, since the federal government has not yet legalized marijuana, does that mean that it is still illegal everywhere? Technically, yes. At any time the federal government could announce a crackdown and begin requiring state and federal police to enforce its ban on marijuana.

However, at this time, President Obama has made it known that he does not intend to use federal supremacy to overrule state laws legalizing marijuana. As a result, states that have legalized marijuana should have no fear of federal interference until at least 2016. But, when a new administration takes office, this policy of non-interference could change, so some caution is still warranted.

Until the federal government officially removes marijuana from its schedule of controlled substances, federal law still holds possession of this substance as a crime. This could be true even in states that have simply made marjiuana use legal with a prescription, as it is currently identified by federal law as a drug with little or no medicinal value.

Even In States That Have Legalized Marijuana, Just How Legal Is It?

Many states have attempted to pass legislation directed at legalizing marijuana, either outright (as in Colorado) or for medicinal purposes. While this might make the drug legal under state law, as noted above, it is still not technically legal under federal law.

Still, thanks to policies of non-interfere by the federal government, marijuana is de facto legal in the states that have allowed it. However, that does not mean that one can buy marijuana in one state and transport it across state lines to another state that still holds it as illegal without consequence. Legalization laws only apply to the state that has legalized it; not anywhere else.

Also, legalization by the state does not mean that private entities cannot discriminate against users. For example, an employer can still ask for a drug screen that includes testing for marijuana and refuse to employ someone on the basis of those results. Landlords can preclude tenants from smoking marijuana in their properties, those found impaired by use of marijuana can be ticketed for driving while impaired, and distributing marijuana is still illegal unless licensed by the state in most jurisdictions.

As a rule of thumb, just because it is legal for you to use safely on your own, that does not mean you can use it in public, give it to others, or be free of discrimination for using it. In most respects, it should be treated in a manner similar to alcohol or tobacco.

How Permanent is Legalization?

This is a difficult question to answer. There appears to be growing support for legalization of marijuana for medical purposes, if nothing else, and many states have joined the ranks of those allowing some form of legalized marijuana use. But, several states have also defeated measures to legalize marijuana, meaning there still exists a powerful counter-movement.

Federal non-interfere policies created by the Obama Administration may only last as long as President Obama remains in office. Whether these policies will continue in the future is largely a matter of the political leanings of his successor and any others that follow after that until marijuana is officially legalized by the federal government, as well.

If you are interested in learning more about the process of legalizing marijuana, an attorney is a good place to start. In fact, pushes for the legalization of marijuana in many states have been spearheaded by attorneys. An attorney will have knowledge of the legislative process, the legal requirements for any proposed measures, and may have contacts that can help push such proposals through state law making bodies. Attorneys can also help you research political groups supporting the legalization of marijuana and put you in touch with the right people to get involved with the legalization movement.

You can find a list of attorneys that can assist you by visiting HG.org and browsing for attorneys by area of practice.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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