Marijuana decriminalization at the federal level is often seen as a panacea to a whole host of problems in the cannabis space. Take standardization, for example. There are some who believe that decriminalization will pave the way for national standards, thereby eliminating the many differences in state law.
That is not going to happen. If and when Washington does get around to decriminalization, lawmakers will be limited in the amount of regulatory control they can exercise over cannabis. Our federal-state system is designed purposely to do that.
The Current State Environment
As things currently stand, cannabis regulation varies by state. California residents can legally buy, grow, and use cannabis to their heart’s content. Not so in Utah. In the Beehive State, only medical cannabis is allowed. According to the owners of Deseret Wellness in Park City, state lawmakers are committed to not going the recreational route.
The states regulate cannabis in their own ways out of necessity. Because cannabis is still illegal under federal law, states that choose to defy Washington are responsible for coming up with their own regulations. There is no other way to administer a state-legal cannabis program.
State Laws Under Decriminalization
The question at hand is whether federal decriminalization would change the state-by-state nature of cannabis regulation. In a word, no. The necessity for state regulation does not change with federal decriminalization. All that changes is the reason behind state regulation.
The U.S. Constitution states that anything not explicitly covered by the document is left to the states. Cannabis is not mentioned in the Constitution. Neither is the concept of regulating it. The best Washington could do is tax the industry and put rules in place to regulate interstate transport. But that is about it.
As with alcohol, states would still retain the constitutional right to regulate cannabis as they see fit. Will they continue regulating in the same fashion as they are now, if federal decriminalization becomes reality? That remains to be seen.
Protecting Themselves Against Liability
A big issue for states right now is liability. They know that legalizing cannabis defies federal law. Therefore, they craft their cannabis laws in such a way as to insulate themselves from federal retaliation. They do not want to face any liability issues that could put them at odds with federal regulators.
Decriminalization would change that. Without worries of violating federal law hanging over their heads, states might be willing to loosen their restrictions. Take interstate transport.
Utah allowed patients to travel across state lines in search of medical cannabis during the first year of its program. Lawmakers felt doing so was a necessity until the industry was strong enough in Utah to meet demand. As of January 2021, crossing state lines is no longer allowed.
Crossing state lines is a liability issue for Utah. That liability goes away if Washington decriminalizes cannabis across the board. Utah lawmakers may be amenable to changing their law yet again to allow cross-border sales.
Taxation Will Be the Biggest Change
Consumers hoping for federal standards once cannabis is decriminalized probably won’t get what they want. But they will get higher taxes. Congress is not going to legalize cannabis and simultaneously ignore the tax revenues a billion-dollar industry can generate.
All signs point to an eventual decriminalization bill making its way through Congress. When that happens, be it this year or several years from now, do not expect decriminalization to lead to national standards. Decriminalization will not change the need for states to regulate cannabis as they see fit. State-by-state regulation is how our system is designed to work.
