FRANKFORT, Ky. (March 21, 2022) – Last week, the Kentucky House passed a bill that would legalize a limited medical marijuana program in the state despite federal cannabis prohibition.
Rep. Jason Nemes (R) introduced House Bill 136 (HB136) on Jan. 4. The legislation would establish a limited medical marijuana program in Kentucky. Qualified patients could access medical marijuana at state-licensed dispensaries. Home cultivation and smoking marijuana would still be prohibited. Whole-flower products would be legal, but patients would have to vaporize them.
On March 17, the House passed HB136 by a 59-34 vote.
“This is Kentucky grown, Kentucky processed, Kentucky tested,” Nemes said ahead of the vote. “Grown by Kentucky farmers on Kentucky land with Kentucky seeds for our Kentucky brothers and sisters and the Kentucky patients from across the Commonwealth.”
A similar bill passed the House in 2020 but stalled in the Senate. Senate Judiciary Chairman Whitney Westerfield has indicated that he now supports legalization for medical purposes even though he still has reservations about marijuana reform. In a tweet, he said he’s heard from a lot of constituents who would benefit from medicinal cannabis. Westerfield also said, “I have concerns about the precedent we’re setting by ignoring federal law.”
EFFECT ON FEDERAL PROHIBITION
Kentucky has no obligation to enforce federal marijuana prohibition. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.
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 medical marijuana in Kentucky would remove one 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 York, New Mexico, Virginia 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. As Tenth Amendment Center Executive Director Michael Boldin noted, “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.”
HB136 will move to the Senate for further consideration. Once referred to a Senate committee, it must be brought up for a hearing and pass the committee by a majority vote before moving forward in the legislative process.