DOVER, Del. (May 30, 2024) – On Tuesday, Delaware Governor John Carney signed a bill that significantly expands the state’s medical marijuana program by allowing doctors to recommend cannabis for any medical condition.

Rep. Edward Osienski and a large bipartisan coalition of cosponsors introduced House Bill 285 (HB285) in January. The new law eliminates the list of qualifying conditions for medical marijuana, allowing doctors to recommend it for any condition. People over 65 will be able to self-certify their need for medical cannabis.

The new law also authorizes medical marijuana cards with two and three-year terms. Currently, medical cannabis cards are valid for just one year. Patients with terminal illnesses will qualify for cards with an indefinite expiration date.

In another expansion of Delaware’s medical marijuana program under the new law, patients with cards from other states can access medicinal cannabis in the state.

The House passed HB285 by a 26-10 vote. The Senate approved the measure 16-5. With Gov. Carney’s signature, the bill went into immediate effect.

The state legalized marijuana for adult use in 2023 and is still working out the framework for retail sales.

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.

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. The state legalized marijuana for adult use in 2023. These laws progressively removed a huge layer of laws prohibiting the possession and use of marijuana in the state even though federal prohibition remains 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. In 2021, New YorkNew MexicoVirginia, 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. 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 enactment of HB285 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.

Mike Maharrey

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