DOVER, Del. (Jan. 26, 2023) – This week, separate Delaware House committees passed bills that together would legalize marijuana for adult use and create a regulatory structure for cannabis commerce in the state despite ongoing federal marijuana prohibition.

Rep. Ed Osienski (D) is the chief sponsor of both House Bill 1 (HB1) and House Bill (HB2). Together, the two bills would legalize marijuana and create a regulatory and tax structure for the commercial cultivation and sale of cannabis in Delaware.

HB1 would decriminalize marijuana for adults, allowing individuals aged 21 and over to possess use, share and purchase up to one ounce of cannabis. The personal cultivation of marijuana would remain illegal under this law.

HB2 would create a basic system for a commercial marijuana market in the state under the control of the Division of Alcohol and Tobacco Enforcement (DATE).

On Jan. 24, the House Revenue & Finance Committee passed HB2 by a 7-2 vote. The following day, HB1 passed the Health & Human Development Committee by an 11-4 vote.

Osienski took a similar two-pronged approach in 2022. Decriminalization passed last year, but the regulatory scheme was narrowly defeated. Gov. John Carney (D) vetoed the decriminalization bill.

The decriminalization bill only needs a simple majority to pass, but the regulatory scheme needs to garner a three-fifths majority because it includes taxes.


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.


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. In 2021, New YorkNew MexicoVirginia and Connecticut legalized marijuana through legislative action, and Rhode Island legalized cannabis for adult use in 2022. With Missouri and Maryland legalizing marijuana in November, there are now 37 states allowing cannabis for medical use, and 21 legalizing for adult recreational use.

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.”


HB2 will move to the House Appropriations Committee where it will need to get a hearing and pass by a majority vote before moving forward in the legislative process. At the time of this report, it was unclear if HB1 would go to a second committee or straight to the House floor.

Mike Maharrey

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