DOVER, Del. (Feb. 22, 2022) – Last Thursday, a second Delaware House committee passed a bill to legalize marijuana for adult use despite ongoing federal cannabis prohibition.

Rep. Ed Osienski (D) and a large coalition of Democrats introduced House Bill 305 (HB305) on Jan. 12. Under the proposed law, adults 21 and over could purchase and possess up to 1 ounce of marijuana. Home growing cannabis would remain prohibited. A marijuana commissioner working under the state Division of Alcohol and Tobacco Enforcement would regulate the state’s cannabis industry, overseeing licensing of retailers and growers.

On Feb. 17, the House Appropriation Committee passed HB305 “on its merits” by a 4-0 vote. In the Delaware legislature, “on its merits” means that the legislator recommends the chamber should take action on the bill but does not take a position on what action should be taken.

The House Health and Human Development Committee passed the bill last month with six members voting “favorable” and three voting “on its merits.”

The committee passed a similar bill last year, but it stalled before a vote in the full House over disagreements on “social equity” provisions. This year’s bill was written to address some of those issues.

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 remove 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

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. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. Earlier this year, New YorkNew MexicoVirginia and Connecticut legalized marijuana through legislative action.

With 37 states allowing cannabis for medical use, and 18 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 move to legalize recreational marijuana in Delaware highlights another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way – the law tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.

WHAT’S NEXT

HB305 will move to the full House for further consideration.