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Bill in question

I haven't been able to find a clear answer to this question.

I'm aware that there exists the Supremacy Clause which says that state laws cannot contradict federal laws. Another way of wording this question is: would federally decriminalizing marijuana mean that state criminalization is contradictory?

Prostitution for example is not a crime or even illegal under federal law, though it is a crime in almost every state. Given this example, it seems like marijuana would remain illegal under state law (if applicable), though I'm not confident about my intuition here.

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  • It might just be the intent that such a law would tend to nudge states towards repealing their own laws. They'd also have a somewhat harder time enforcing such laws if they didn't have the support of the federal DEA. – Nate Eldredge Oct 31 '20 at 15:05
  • There are certainly all kinds of other products that are legal under federal law but banned or regulated in certain states. Fireworks are the first example that comes to my mind. I don't know of any Supremacy Clause problems with that. – Nate Eldredge Oct 31 '20 at 15:07
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If such a bill passes as written, it removes any federal criminal prohibitions against marijuana (assuming their research was sufficiently thorough), and raises marijuana to the same legal status as celery salt, which simply is not mentioned by federal criminal law. There would be no federal declaration that marijuana is now legal, and therefore, when federal law is silent, state law can say something. If silence at the federal level precluded state law on the topic, there could be not any state law – the Supremacy Clause only addresses conflicts. The bill could also be written to include a positive declaration that there shall be no laws against marijuana, and that would create a conflict with state law.

Often, conflicts are avoided by crafting a jurisdictional difference, such as having laws that only apply while on federal property, or w.r.t. federal employees. The Constitution is structured to separate what the federal government can do versus what state governments can do, so that conflicts don't arise – however, the Commerce Clause ends up being used to expand federal power (e.g. the Controlled Substances Act). As Nate Eldredge comments, there is a huge difference between what is allowed under federal vs. (certain) state laws w.r.t. fireworks, and even town-to-town variations in fireworks laws. Numerous "professional" acts are completely legal w.r.t. federal law but are illegal at the state level. No federal law prohibits me from practicing as an attorney: it's state law that does that (likewise, being a cosmetologist or selling beer).

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The bill, as written, does not purport to change any state laws. It removes marijuana from all schedules of the federal controlled substance list, and would remove a number of provisions making use or possession of it a crime. It also would add regulation of production under the same Federal rules as govern Tobacco. It also would clear criminal records of Federal convictions for various marijuana offenses. None of that would change any state laws directly.

However, some state laws may refer to the Federal controlled substances list, making it a crime to use or sell or posses items included in a particular schedule. Any state laws of this type would be effectively changed, as the contents of the list would change. But a state could amend its laws to specifically make marijuana criminal if it so chose.

Note that this bill has not passed, and seems unlikely to pass in the relatively short time left in the current Congress. For it to become a law, it would need to be reintroduced in a later congress, and pass in the usual way. Such a new bill might be different.

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