Here's How the End of Federal Cannabis Prohibition Could Play Out

Industry Johnny Green 1/19/2018
usa flag embed in cannabis leaf
When and how will federal prohibition of cannabis come to an end?

If you are a cannabis consumer, you likely dream of the day when cannabis is legal where you live.

Of course, if you live in a state where cannabis is already legal then you already know what the freedom of legalization feels like.

Cannabis legalization is spreading across the country, and hopefully, cannabis becomes legal everywhere soon.

But how did cannabis become illegal in the first place?

How did cannabis prohibition begin in the U.S.?

cannabis legal issues
Why did cannabis become illegal in the first place?

Federal cannabis prohibition started in the United States in 1937 when Congress passed the Marihuana Tax Act.

The change in public policy came after a lengthy propaganda campaign ran by staunch cannabis opponent Harry Anslinger.

Anslinger used a combination of unfounded racial scare tactics and strategic arrests of famous cannabis consumers to achieve his goal of convincing lawmakers to prohibit cannabis.

Why did Anslinger do it?

To secure his role as the nation's first drug czar and receiving more funding for Federal Bureau of Narcotics (the original DEA).

In 1969 a landmark Supreme Court ruling declared the Marihuana Tax Act unconstitutional. The decision came after Timothy Leary, a professor and activist, challenged the constitutionality of the Marihuana Tax Act.

Leary successfully argued that the act required self-incrimination, which violated the Fifth Amendment. The Marihuana Tax Act was soon replaced by the Controlled Substances Act in 1970.

Two years after the passage of the Controlled Substances Act a federal commission OVERWHELMINGLY determined that the law was overly harsh, and that cannabis should be decriminalized.

Unfortunately, the commission's recommendation was ignored.

How cannabis prohibition is being overturned at the state level in the U.S.

Cannabis is still prohibited at the federal level in this country, but a number of states have voted to end prohibition. They are listed below, along with the year that they legalized:

  • Colorado and Washington (2012)
  • Oregon, Alaska, and Washington D.C. (2014)
  • California, Nevada, Maine, and Massachusetts (2016)

Upcoming legislative sessions in prohibition states could see one or more states ending cannabis prohibition via legislative action, and Michigan voters will hopefully legalize cannabis for adult use via a citizen initiative.

Attorney General Jeff Sessions recently rescinded an Obama-era memo which provided some protections for legal cannabis states.

The move was likely intended to try to thwart state-level legalization efforts, but in actuality, it seems to have had the opposite effect.

Sessions recent actions have galvanized the cannabis movement, both at the state and federal level. Lawmakers at both levels were swift to condemn the move my Sessions, and many politicians found a renewed interest in ending prohibition.

State and local victories have been abundant in recent years, and support has never been greater for ending federal prohibition, which begs the question 'when will cannabis be legal in all 50 states?'

What would it take to legalize cannabis nationwide?

Cannabis can be removed from the Controlled Substances Schedule in two ways:

  1. Via an act of Congress
  2. Via an act of the Executive Branch

The Brookings Institution put out an amazing video that describes in detail what it would take for cannabis to be legalized via both avenues, which can be seen starting at the 6:30 mark here:

As described in the video, an act of Congress is much more straightforward and requires less steps than descheduling cannabis via the Executive Branch.


...When many people think about cannabis legalization at the national level, they have visions of a regulated national cannabis industry system.

A federally regulated cannabis industry would be great, but what is more likely to occur at the federal level is something that will look much different.

What would the end of federal prohibition look like?

federal and state cannabis laws
Many cannabis activists have been fighting prohibition for a long time.

I once had a conversation at a National Cannabis Industry Association event with the leading cannabis supporter in Congress, United States Representative Earl Blumenauer.

At the event, I asked Congressman Blumenauer what he envisioned federal legalization looking like if/when it happens.

Congressman Blumenauer explained to me that federal reform will likely not involve a federal tax and regulation measure, but would instead involve the removal of federal prohibition.

"That way states can do as they please and decide the issue on their own. If they want to legalize cannabis, great, and if they don't want to no one will be forcing them to do it." Earl Blumenauer told me at the time.

Federal reform in that manner is much more palatable for federal politicians, and is therefore much more likely to be embraced by some states that for whatever reason wish to continue to cling to failed prohibition.

In looking at it from that perspective, some states could cling to cannabis prohibition for many more years. I truly hope that is not the case, but it is certainly a possibility.

Intrastate versus interstate

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What about moving cannabis across state lines?

A very noteworthy wrinkle for people to keep an eye on in all of this is what interstate cannabis commerce will look like.

Right now, states that have voted to legalize cannabis do not allow cannabis to be transferred across state lines. Federal law also prohibits that type of interstate commerce.

All of the cannabis that is bought and sold in states like Colorado and Washington is done so in an intrastate market system.

The cannabis industry that many consumers want to see is one which allows cannabis that is grown in one part of the country to be able to be transported and sold in markets that have a much harder time growing quality, sustainable cannabis.

Even in a scenario in which federal prohibition is removed for the purpose of criminal prosecution for possession and cultivation, problems involving interstate commerce could remain and would still need to be addressed by Congress.

If you want to see cannabis prohibition end at the federal level, you need to do your part to help make it happen. Contact your members of Congress and let them know that it's time for the U.S. to take a sensible approach towards cannabis policy!

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