FRANKFORT, Ky. (Dec. 15, 2016) – A bill set for introduction in the Kentucky Senate would legalize marijuana for recreational use. Passage would not only legalize marijuana in the Commonwealth, but would also take a big step toward nullifying federal cannabis prohibition in practice in the state.

Sen. Perry Clark (D-Louisville) prefiled BR408 for introduction during the 2017 legislative session. The legislation would permit any individual aged 21 or above to do the following:

(a) Possess up to one (1) ounce of cannabis on his or her person;

(b) Possess and cultivate up to five (5) cannabis plants for personal consumption;

(c) Possess any additional cannabis produced by the person’s lawful cannabis cultivation, except that any amount of cannabis in excess of one (1) ounce shall be possessed in the same facility or on the same property where the cannabis plants were cultivated;

(d) Consume cannabis on private property with the permission of the property owner;

(e) Transfer one (1) ounce or less of cannabis and up to five (5) immature cannabis plants to persons twenty-one (21) years of age or older without remuneration; and

(f) Assist any person who is twenty-one (21) years of age or older in any of the acts described in this section.

The Department of Alcoholic Beverage and Cannabis Control would be tasked with regulating the new recreational marijuana industry under BR408. Licenses would be required for marijuana growers, distributors, resellers and testing agencies, and would be made available at the cost of $5,000. An excise tax of $30 per ounce on all cannabis flowers would be levied as well, with a lower excite tax of $10 levied on non-flower portions of the plant as well as immature cannabis plants.

If SB408 is successful during next year’s legislative session, Kentucky would be the first state to legalize recreational marijuana through the state legislature rather than the ballot initiative process. Despite the federal prohibition on marijuana, measures such as SB408 remain perfectly constitutional, and the feds can do little if anything to stop them in practice.


The federal Controlled Substances Act (CSA) passed in 1970 prohibits all of this behavior. Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Legalization of marijuana in Kentucky would remove a huge layer of laws prohibiting the possession and use of marijuana, but federal prohibition will remain on the books.

FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By mostly ending state prohibition, Kentucky essentially sweeps away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.


With passage of BR408, Kentucky would join a growing number of states simply ignoring federal prohibition, and nullifying it in practice. Colorado, Washington state, Oregon and Alaska have already legalized recreational cannabis with California, Nevada, Maine, and Massachusetts set to join them after ballot initiatives in favor of legalization were passed in those states earlier this month.

With more than two-dozen states allowing cannabis for medical use as well, the feds find themselves in a position where they simply can’t enforce prohibition any more.

“The lesson here is pretty straight forward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.


BR408 will need to be formally introduced and pass its committee assignments before it can be considered by the full Senate. Stay in touch with our Tenther Blog and our Tracking and Action Center for the latest updates.

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.