Let’s discuss federalism. It’s the most important concept affecting the cannabis industry’s emergence from the shadows of illegal activity into a recognized medicine and recreational substance. Federalism? What’s that?
For those of you who forgot your high school civics, and those of you who never took it, federalism is the system of government where we have one central government, the United States government, and 50 (51 with DC) state governments. The US government has certain powers and so do the states. Each controls part of the complete power of government, or all of the power of the King. Wait, you say, we don’t have a King, but actually we do in a way. You see the power of a King is called Sovereign Power. The King had it all, he was the legislature, the executive and the judge. It was good to be King.
Back in the 1770’s a bunch of folks in the King of England’s domain in North America had had enough of this, and didn’t like the King, who lived far away, telling them what to do with their money or how to run their businesses. They really didn’t like the King taxing them for his purposes, which often gave them no benefit. So they dumped his tea in the harbor rather than paying taxes on it, raised an army and declared their independence, essentially telling the King to F-off. You know the rest of the story, Big George, with the help of some of the King’s enemies – the French and Germans and a Polish guy, kicked his butt and that was that.
Except, without a King, who was to be in charge. These guys really didn’t like each other all that much and after the King was gone wanted to be sure that no one had too much of the King’s former power. They determined that their separate colonies were really separate and independent States.
They set up a central government of “limited power”. The separate states agreed to unite under this new central government – get it – united states, and they called themselves The United States of America. Still they were concerned about too much sovereign power in the hands of a few people, so they limited the power of the central government and declared a kind of “federation” where the states would still have much of the sovereign power of the King or the power not given to the central government. This federation of governments is what we call federalism. We dub the central government as the federal government, but federalism really refers to the dual sovereignty and shared power between the United Sates on one side and each of the sates on the other.
The United States Government is also called the federal government, and despite its immense powers it is actually a government of limited power. The Constitution reserves all governmental powers not specifically granted to the federal government by the Constitution “to the states and the people respectively”.
Ok, what does this have to do with cannabis? Everything! You see, the United States has a law, the Controlled Substances Act which says that there is no evidence that cannabis in any form has any medically beneficial purpose and thus the possession, growing, sale or use of cannabis is a crime. Meanwhile, some of the states, under their separate governmental powers that they get to exercise inside their boundaries, are saying that they can control and regulate cannabis as medicine and for recreation. Who wins? Usually the feds win under something called the Supremacy Clause. Other times both the United States and the separate states get to have a say. Now it gets tricky. The United States has no control over strictly state matters, so if you’re growing or selling cannabis only within state boundaries, the feds are left out – except where did your delivery vehicle come from and do you use the U . S. mail or an electronic service to pay your electric bill – oops, these things cross state lines so they are part of Interstate Commerce and the feds have a lot to say about that.
So for now, let’s just understand that the feds don’t like cannabis and many of the states do. You can be legal under state law while illegal under federal law and that dilemma is a real problem for the emerging industry.
Often enough, throughout American history, the stated have led social change and that’s happening again now, but remember, I like to look at it this way – all social movements begin with some sort of conscientious objection or civil disobedience. Here we can be perfectly legal under stare law and fully illegal under federal law.
This example of Federalism, the idea of dual sovereignty and shared power, is sometimes clumsy as it is here and causes some huge headaches for the industry. We’ll discuss those in the coming weeks, but now you know how it got there.