Marijuana Legalization’s Federalism Problem

Marijuana Legalization’s Federalism Problem

The law is the law — except when it isn’t. And very often, it is not. This is a good way to explain how marijuana legalization works in the United States.

This isn’t a value judgment about you. It’s a recognition of exceptions created around you. If you are reading this on a device, or using a piece of software — and you are doing both — you are party to a contract. Chances are good that the terms of this agreement, to which you are bound, are unknown to you.


So often do end-user license agreements go unread—and so often do their terms conflict with basic consumer-protection laws — that the contracts technology users routinely agree to with a simple click, and no review, constitute what some experts have called a “parallel legal system.”

In other words, the law is the law — except when it isn’t. And very often, it is not. This is a good way to explain how marijuana legalization works in the United States — and why cannabis remains a black market commodity in much of the 29 states in which some form of the drug is legal.

Ripping Up Your Rights


There’s wide recognition now that longstanding American drug policy is bad. Weakening harsh drug laws and moving to regulate and tax cannabis — capturing revenue for the public that would otherwise go to the black market — is proving to be winning public policy. But across the country, from coast to coast, in states where the law provides for legal cannabis access, governments are creating exceptions.


Municipal and county lawmakers are passing strict laws banning commercial cannabis activity, or regulating personal rights meant to be guaranteed to all citizens so strictly that they cannot be enjoyed.

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In a real way, this is worse than the end-use license agreement hustle. What local governments are doing is taking a contract you voted for — a binding voter-approved ballot initiative — and then ripping it up.


In California, where 57 percent of voters approved recreational marijuana legalization in November 2016, having cannabis delivered to your home — in the same way you can have a carton of cigarettes or a case of whiskey dispatched to your door — is strictly prohibited in 75 percent of the state, according to a recent review from the state Legislature.


This is because the Adult Use of Marijuana Act grants broad powers to local governments to regulate commercial marijuana activity — or, if they chose to, ban it outright. But even the minimum personal freedoms granted by marijuana legalization are restricted, or restricted away entirely.

An Untenable Situation


If a locality chooses to outlaw marijuana stores, citizens are still guaranteed cannabis access through a personal allowance of six plants grown at home. Yet in nearly 15 percent of the state’s more than 300 cities, citizens are required to obtain a permit before they can grow. In some cases, they are required to submit detailed site-plan drawings, submit to police inspections, and pay permit fees of $1,400 or more, according to the Orange County Register.

Instead of embracing an industry that will sell more than $1 billion worth of product in its first year of existence, more than 65 percent of cities in the state have elected to ban it. This led the newspaper to ask the question: “Are some cities trying to regulate away Prop 64?”’


As far as state lawmakers are concerned, the answer is absolutely yes. This is partially why the California Legislature is pushing a bill, SB 1302, that would make it clear that local governments’ powers to regulate cannabis does not extend to banning delivery services. Bill sponsors state outright that “local bans on delivery substantially undermine” many of the goals of legalization. But to see these undone, and to change state law to allow citizens to enjoy it, they’ll have to beat opposition from powerful law-enforcement lobbies.

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Other states could learn from this untenable situation, and create some minimum guarantees for cannabis access. Doing so would fulfill legalization’s main goals of ending criminal activity around the world’s most popular illicit substance. It’s hard to find an argument in favor of keeping cannabis legal.


But the situation in California, often considered one of the friendliest climes for commercial marijuana activity in the country, demonstrates that marijuana legalization can remain an abstraction even after a big win at the ballot. It’s also typical.

An “Entry Fee” for Basic Freedoms?


Across the country, local governments are moving to create local carve-outs, or declare outright that cannabis friendly state laws end at city limits.

In some cases, local governments aren’t even waiting for marijuana legalization to pass before passing bans.

Try to imagine an analog in which basic rights and freedoms can be exercised only after rigorous inspections or an “entry fee.” Surely liberals and libertarians alike would bristle at the idea of a police inspection or onerous fee levied on a would-be home brewer. Examples of similar limits that come to mind are poll taxes and other nefarious “exceptions” to democratic rights — a banned practice that’s enjoying a comeback.

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This situation was in many ways predictable. Legalization ballot initiatives were deliberately written in such a way to grant local authorities broad powers — seen as a necessary move without which legalization wouldn’t have had any support from leery mayors, city councils, and hostile sheriffs or police departments.


But this also shows the dangers of involving enemies to the negotiating table. Clearly, at least some local governments have approached legalization “regulation” in bad faith, using it as a cover to continue prohibition. This could be merely a temporary reaction, the expected resistance to changing entrenched policy. But it is also a clear sign that a successful legalization initiative is only the beginning — and that it will take years of work post-legalization for a regulated commercial cannabis industry to replace the black market.