RICHMOND, Va. (March 7, 2024) – Last week, the Virginia House and Senate gave final approval to bills that would legalize the retail sale of marijuana in the state despite ongoing federal cannabis prohibition.
Sen. Aaron Rouse filed Senate Bill 448 (SB448) on Jan. 9. Del. Paul Krizek filed the companion, House Bill 698 (HB698), on the same day. The legislation would establish rules, regulations, and a taxing structure for the retail sale of marijuana to adults 21 and over. Under the proposed law, retail sales would begin May 1, 2025.
Virginia legalized marijuana for adults in 2021, but the legislature never followed up and passed enabling legislation to regulate retail sales. As a result, adults can legally possess up to one ounce of marijuana and grow four plants per household for personal use in Virginia, but retail sales are only allowed for medical marijuana patients.
SB448/HB698 also removed penalties for individuals who make cannabis products for personal use and for possessing lawful amounts of marijuana in public.
The House approved the final version of SB448/HB698 by a 51-47 vote. The Senate passed the measure by a 21-18 vote. The legislation will now go to Gov. Glenn Youngkin’s desk for his consideration. It remains unclear if the governor will sign the measure. Earlier this year, he said, “I just don’t have a lot of interest in pressing forward with marijuana legislation.”
EFFECT ON FEDERAL PROHIBITION
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains a 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.
When Virginia legalized medical marijuana in 2021, it removed a layer of laws prohibiting cannabis even though federal prohibition remains in effect. The enactment of SB448/HB698 would remove another layer of enforcement laws. 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. In 2021, New York, New Mexico, Virginia, and Connecticut legalized marijuana through legislative action, and Rhode Island legalized cannabis for adult use in 2022. Missouri and Maryland legalized marijuana in November 2022. The Delaware legislature legalized marijuana in 2023, and Ohio voters approved marijuana for adult use in the November election. Currently, 38 states allow cannabis for medical use, and 24 have legalized it for 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.”
The passage of SB448/HB698 demonstrates another important reality. Once a state puts laws in place legalizing cannabis, they tend to eventually expand. 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. It also demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Opening the door clears the way for additional steps. You can’t take the second step before you take the first.
WHAT’S NEXT
Gov. Youngkin will have 30 days from the data SB448/HB698 to sign or veto the legislation. If he takes no action, it will become law without his signature.
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