Voters and legislatures in every state can approve constitutional amendments and legalize marijuana, but those will never supersede the U.S. Constitution. The Supremacy Clause contained in Article VI of the Constitution subordinates all state laws to federal laws. This clause dates back to our Founding Fathers. James Madison defended the Supremacy Clause as vital to the functioning of the nation.
When Floridians overwhelming placed the medical marijuana Amendment 2 into the state’s Constitution in November, nobody predicted the fate of that law could become questionable. President-elect Donald Trump’s choice for U.S. attorney general is a staunch opponent of the legalization of marijuana, in any form. Sen. Jefferson Beauregard Sessions III has called cannabis reform a “tragic mistake” and is surely inclined to rescind the Obama administration’s policy on not enforcing a federal prosecution of marijuana — issued in a 2009 memo by then Attorney General Eric Holder, which was updated in 2013.
That U.S. Department of Justice update to its federal marijuana enforcement policy concerns the possession of small amounts of marijuana. The policy clearly states marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute under eight priorities. Those enforcement priorities, however, allow state and local authorizes to address cannabis through their own narcotics laws. That directive brought significant political and legal implications.
While for years polls have shown widespread public support for medical marijuana — here, in Florida, for people suffering from debilitating conditions under the amendment — recurring efforts in Congress to halt federal prosecution of medical cannabis have failed. Under the George Bush administration, the Drug Enforcement Administration raided medical marijuana distributors even though the dispensaries seemed to be following state laws.
Could that happen in Florida? Sessions has not explicitly stated he intends to crack down on states with permissive marijuana laws, including medical use of the substance. But his past opposition certainly indicates that will be the cse.
This week, Florida’s Legislature began working on the implementation of Amendment 2. The Senate’s Health Policy Committee held a workshop on the issue, hearing from proponents of the amendment and the state’s sheriff’s association. The amendment requires the state Department of Health to issue regulations by a strict deadline, six months after the Jan. 3 effective date of the citizens initiative and then carry out those rules three months later.
Federal law classifies marijuana in the same dangerous drug classification, Schedule 1, as heroin and ecstasy, a ludicrous designation that has stood for half a century. Schedule 1 drugs are determined to have no “accepted medical use and a high potential for abuse.”
But that has not been the case with marijuana as patients with debilitating conditions have demonstrated over the years and even historical findings have demonstrated the medical value of cannabis. When the Drug Enforcement Administration rejected calls to relax marijuana’s classification in August, the agency did agree to allow more medical research on cannabis and its effects, a major victory in itself.
Sessions — and Trump — will soon determine the fate of the legalization of medical marijuana, now in 28 states and the District of Columbia.
Florida’s Amendment 2 — “Use of Marijuana for Debilitating Medical Conditions,” as the title stated on the ballot — is not some loose and permissive measure that allows the widespread use of cannabis. The language was crafted to require the state to regulate marijuana production and distribution centers and issue identification cards for qualifying patients and caregivers, not just anyone. The language also specifically states patient conditions must be debilitating and excludes non-debilitating conditions, thus removing the challenge that marijuana could be recommended for less serious ailments.
Manatee County, Bradenton and other governments are sensibly following a cautious path on medical cannabis by adopting moratoriums on zoning permits for dispensaries — before determining restrictions on locations and other potential rules. Palmetto adopted an ordinance in 2014 that restricts those businesses to the city’s commercial heavy district.
All that could be moot should the Trump administration repeal the Obama-era permissive position on prosecution of federal law. Whether state constitutional amendments and laws survive any such action will no doubt spur another national debate on marijuana.