H.R. 5323, the "Stop Pot Act," is a bill currently in the 118th Congress to discourage states from legalizing recreational use of marijuana by cutting their federal highway funding by 10%. This is the same method that the federal government used to institute a national drinking age of 21.

The bill would apply to any state "in which the purchase or public possession of marijuana for recreational purposes is lawful." Note that it does not say "lawful under state law"; it simply says "lawful."

Would this actually have any effect, considering that marijuana is prohibited under federal law even where it is not prohibited by state law? Would a state likely succeed in court by arguing that as federal law still applies and supersedes the state's law under the Supremacy Clause, "the purchase or public possession of marijuana for recreational purposes" is not actually lawful in that state (or any other state), and thus the state should still receive full federal highway funding?

I understand that it is highly unlikely that it will pass; I'm asking about how it would be interpreted if it did pass.


1 Answer 1


Properly drafted, this law could have the desired effect if it passed. The law could simply say "decriminalized under state law." Indeed, there would even be a rational theory that the cut in highway funds is necessary to pay for federal enforcement of federal marijuana laws since the state laws aren't carrying any of that burden.

This said, the H.R. 5323 has virtually no chance of becoming law. It would not pass the U.S. Senate (and would probably even fail to garner votes from some GOP Senators) and would also face a Presidential veto.

  • Does your first sentence mean that it is properly drafted, or that it needs to be modified to be properly drafted?
    – Someone
    Commented Sep 19, 2023 at 2:49
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    Yes, this would benefit from some explanation of how the bill could have have any effect. As explained by OP, at least, it seems like the Supremacy Clause would render it meaningless.
    – bdb484
    Commented Sep 19, 2023 at 3:55
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    @Someone It says states where "the purchase or public possession of marijuana for recreational purposes is lawful" and it would be better drafted to say "the purchase or public possession of marijuana for recreational purposes is lawful under state law" although the principles of statutory construction would probably lead to the same outcome.
    – ohwilleke
    Commented Sep 19, 2023 at 11:06
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    Isn't one of those principles something like "the court presumes that the legislature intended the law to actually do something"? Under OP's reading, the law has no effect whatsoever. Commented Sep 19, 2023 at 18:32
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    The law has no immediate effect, but that's not the same has having no effect whatsoever. If the federal government were to repeal its laws against recreational use, the law's effects would become apparent. This kind of contingent lawmaking is perfectly ordinary. We've never actually gotten to the seventh person, but that doesn't mean the Presidential Succession Act "has no effect whatsoever."
    – bdb484
    Commented Sep 20, 2023 at 3:51

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