DOVER, Del. (Jun. 12, 2018) – Last week, a Deleware Senate committee passed two bills that would expand the state’s medical marijuana program and its cannabis decriminalization laws, further nullifying federal prohibition of cannabis in effect. 

Rep. Peter Schwartzkopf (D-Rehoboth Beach) and 23 bipartisan co-sponsors introduced House Bill 374 (HB374) to add glaucoma, chronic debilitating migraines, pediatric autism spectrum disorder, and pediatric sensory processing disorder to the list of qualifying conditions for medical marijuana in the state.

Senate Bill 197 (SB197) was introduced by Sen. Gregory Lavelle (R-Sharpley) and 17 bipartisan co-sponsors. The legislation would create a process to expunge marijuana offenses from criminal records if they occurred prior to the decriminalization enacted in 2015 and would not be considered a criminal offense under the current law.

“It’s an issue of fairness and equity,” Sen. Lavelle said to the Delaware State News. “You got arrested three years ago for a half-ounce of marijuana, you have to report that when you’re asked the old ‘have you been arrested and convicted’ question, and if you got cited tomorrow it’d be a civil offense, so it’s just an opportunity to do that.

Both bills were approved by the Senate Health, Children & Social Services Committee on Jun. 6. HB374 had previously been approved in the state House by a unanimous 41-0 vote on May 1.

Despite the federal prohibition of marijuana, measures such as HB374 and SB197 remain perfectly constitutional, and the feds can do little if anything to stop them in practice.


Under the Controlled Substances Act (CSA) passed in 1970, the feds maintain complete prohibition of cannabis. 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.

Deleware legalized medical marijuana in 2011 and decriminalized cannabis in 2015. These acts removed a layer of laws prohibiting the possession and use of marijuana, but federal prohibition remains on the books.

FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law.  By legalizing marijuana in some situations, Delaware essentially swept away some 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.


Passage of these bills would ignore federal prohibition and start the process of nullifying it in practice in the state. Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. In January, Vermont became the first state to legalize marijuana through a legislative act.

With 30 states allowing cannabis for medical use as well, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

“The lesson here is pretty straightforward. 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.

The move to expand medical marijuana laws and expunge criminal records in Deleware demonstrates another important reality. Once a state puts laws in place legalizing marijuana, it tends to eventually expand. SB197 and HB374 are perfect examples of this tendency. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. This bill represents a further erosion of unconstitutional federal marijuana prohibition.


HB374 and SB197 will now have to be approved by the full Senate to move forward in the legislative process. You can find your state senator’s contact information at this link.

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.