DOVER, Del. (March 25, 2021) – On Wednesday, a Delaware House committee passed a bill that would legalize the possession and sale of marijuana in the state despite the federal prohibition of cannabis.

Rep. Ed Osienski (D), along with 24 fellow Democrats, introduced House Bill 150 (HB150) on March 18. The legislation would create a structure to tax and regulate marijuana like alcohol. It would legalize possession of up to one ounce of marijuana for personal use. It would also create a tax and regulatory structure for the commercial cultivation and retail sale of marijuana. Home cultivation of cannabis would remain illegal.

HB150 also includes a process for the expungement of past marijuana convictions.

On March 24, the House Health and Human Development Committee passed HB150 by a 5-3 vote.

EFFECT ON FEDERAL PROHIBITION

Delaware legalized medical marijuana in 2011 and decriminalized the possession or consumption of a “personal-use quantity” of marijuana for adults 21 or over in 2015. Last year, the state decriminalized marijuana possession by minors despite ongoing federal cannabis prohibition.

Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis 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.

The legalization of marijuana for personal use in Delaware would take the next step and removes another layer of laws prohibiting the possession and use of marijuana in the state even though federal prohibition would remain in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep 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.

A GROWING MOVEMENT

Delaware is one of a growing number of states simply ignoring federal prohibition and nullifying it in practice.

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. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. During the November election, Arizona, Montana, South Dakota and New Jersey legalized marijuana for recreational use.

With 36 states including allowing cannabis for medical use, and 15 legalizing for adult recreational use, 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.

The push to legalize adult-use marijuana in Delaware demonstrates another important reality. Once a state puts laws in place legalizing marijuana, it tends to eventually expand. HB150 is a perfect example 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.

WHAT’S NEXT

HB150 will now move to the House Appropriations Committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey

The 10th Amendment

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