Legal Weed: What Do New Federal Marijuana Laws Mean?

New federal marijuana laws are once again raising the prospect of legal weed — the House of Representatives has passed legislation that would legalize marijuana nationally, and the Senate is nearing the introduction of a similar bill.

On Wednesday, the House passed the Marijuana Opportunity Reinvestment and Expungement, or MORE Act, which removes cannabis from the Controlled Substances Act and requires courts to expunge convictions of nonviolent marijuana offenders. It passed by a vote of 220-204.

Its chances are far slimmer in the Senate, though, where it would need the support of all 50 Democrats and at least 10 Republicans to pass. A similar but separate Senate bill, the Cannabis Administration and Opportunity Act, is expected to be released near the end of April.

Three-quarters of US states have legalized marijuana to some extent. The recreational market alone hit nearly $15 billion in 2021 and is on target to surpass $25 billion by 2025. But the use, possession and sale of cannabis are still prohibited by federal statute. That’s created a significant disconnect that many lawmakers are eager to reconcile. 

Here’s what to know about marijuana legalization, including what happens to the MORE Act next, which states have legalized weed and how Americans feel about the issue.

Which states have legalized medical marijuana?

As of February, 37 states have legalized the medical use of cannabis: Alaska, Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Virginia, Washington and West Virginia.

In addition, the District of Columbia and the territories of Puerto Rico, Guam, the Northern Mariana Islands and the US Virgin Islands have all legalized medical marijuana.

Each jurisdiction has its own criteria regarding what conditions cannabis can be prescribed for, at what amounts and what the process is for issuing medical marijuana licenses to qualified residents.

Which states legalized recreational marijuana?

According to the National Conference of State Legislatures, 18 states have legalized the adult use of marijuana for recreational purposes (and medical use, as well): Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Michigan, Montana, New Jersey, New Mexico, New York, Nevada, Oregon, Vermont, Virginia and Washington. 

In addition, recreational cannabis is legal in Washington DC, Guam and the Northern Mariana Islands.

After months of negotiations, Rhode Island introduced legislation for adult use of marijuana in March 2022.

Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Wisconsin and Wyoming have medical allowances for the legal possession of CBD (cannabidiol) products containing low levels of THC, the main psychoactive ingredient in cannabis, generally less than 3%. Most legal dispensaries sell products with THC percentages of 25% and above. 

In South Dakota, the state Supreme Court struck down an amendment to legalize recreational cannabis use that passed with 54% of the vote in 2020, following a lawsuit led by Republican Gov. Kristi Noem. 

What does federal law say about marijuana?

Under the Controlled Substances Act of 1970, the Drug Enforcement Agency still classifies cannabis as a Schedule I drug, “with no currently accepted medical use and a high potential for abuse.” (Other Schedule I drugs include heroin and LSD, while cocaine is listed as a Schedule II drug.)

In 2013, President Barack Obama directed the Justice Department to defer to state authorities in jurisdictions that had legalized marijuana, “based on assurances that those states will impose an appropriately strict regulatory system.”

Known as the Cole Memorandum, this guidance was rescinded in 2018 by Jeff Sessions, attorney general under President Donald Trump. Marijuana legalization advocates have encouraged President Joe Biden to direct current US Attorney General Merrick Garland to reinstate the Cole memorandum.

What is the Marijuana Opportunity and Reinvestment Expungement Act?

Now heading to the Senate, the MORE Act would abolish federal criminal penalties for those growing, possessing or distributing cannabis and expunge nonviolent cannabis convictions. It would also institute a tax on marijuana sales, with proceeds funding programs to help communities impacted by the War on Drugs.

It doesn’t require states to legalize cannabis, however. Regulation would be left up to state lawmakers.

The bill initially passed the House in December 2020, the first time either chamber approved repealing federal marijuana prohibition. Then-Sen. Kamala Harris of California, a Democrat, introduced a matching bill in the Senate, though it wasn’t taken up for consideration.

The same thing may happen this time: Even if it does come up for a vote in the upper chamber, it would need ten Republicans and all Republicans to give their support.

“It is unlikely to pass the Senate in its current form,” Michael S. Lavery, a senior research analyst at financial services firm Piper Sandler, told clients, according to Yahoo Finance.  

What is the proposed Senate bill to legalize marijuana?

The Cannabis Administration and Opportunity Act (CAOA) is a separate marijuana-legalization bill being drafted in the Senate. The CAOA would end the federal ban on cannabis and give state-compliant cannabis businesses access to financial services like bank accounts, business loans and credit card transactions.

In a letter last month, Senate Majority Leader Charles Schumer, Senate Finance Committee Chair Sen. Ron Wyden and Sen. Cory Booker invited their colleagues in the upper chamber to help finalize the legislation.  

“Hundreds of millions of Americans live in states that have legalized cannabis in some form while it remains illegal at the federal level,” the lawmakers wrote. That discrepancy “breeds confusion and uncertainty,” they said, and raises questions in areas from small-business growth to public safety.

In a February press conference, Schumer said he was hoping to introduce a bill by April. “As majority leader, I can set priorities. This is a priority for me,” Schumer said, according to Bloomberg.

Per NJ Cannabis Insider, Booker says that the bill is nearly written and he hopes to introduce it in the Senate by April 20, the unofficial holiday for marijuana. 

Are there other marijuana legalization efforts in Congress?

As more states legalize medical and recreational marijuana, more lawmakers want to square up federal laws so they don’t conflict with state regulations.

Last week, the Senate unanimously approved the Cannabidiol and Marihuana Research Expansion Act, which would streamline the application process for researchers who want to study the medicinal value of cannabis and related products.

“This important legislation will cut the red tape around the research process, helping get FDA-approved, marijuana-derived medications safely to patients,” Senator Dianne Feinstein of California, a sponsor of the bill, said in a statement. 

On Feb. 4, the House passed the Secure and Fair Enforcement Banking Act, which would grant state-licensed marijuana businesses access to financial services. Rep. Ed Perlmutter, a Democrat from Colorado, first introduced the bill in 2019. He says he’s confident it will finally clear the Senate this session.

“I think this is the bill that’s going to break the ice, and then other things can be added or advocated for, over the course of the next few months or years,” Perlmutter told Yahoo News.

Does President Joe Biden support legalizing weed?

During the 2020 presidential campaign, then-candidate Joe Biden promised to “decriminalize cannabis use and automatically expunge prior convictions.” 

According to Biden’s campaign website, “No one should be in jail because of cannabis use.”

The site promised that, as president, Biden would “support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a Schedule II drug so researchers can study its positive and negative impacts.”

While the president can’t repeal federal marijuana laws on his own, he can grant amnesty to people with federal convictions for nonviolent marijuana-related crimes. He can also reinstate Obama-era guidance to the Justice Department not to prosecute low-level marijuana offenses or interfere with state marijuana laws

Biden could also throw his weight behind the MORE Act, CAOA and similar bills.

“Biden and his party both are in need of political wins, and relaxing marijuana laws — or fully legalizing the drug — is extremely popular,” Alex Shepard wrote for the New Republic in December. 

How do Americans feel about legal marijuana?

According to a 2021 Pew Research poll, 91% of Americans believe cannabis should be legalized to some degree — 31% for medical use and 60% for both medical and recreational use.

Only 8% of respondents said marijuana should not be legal at all.

Support for decriminalization crosses party affiliation, with 47% of Republicans and Republican-leaning independents favoring legalizing marijuana for both medical and recreational use and an additional 40% for medical use alone. 

That’s compared with the 72% of Democrats and Democratic-leaning independents who back legalization for both medical and recreational use and an additional 23% who want it legalized only for medical use.

The shift has grown through the generations, with 70% of Americans aged 18 to 29 backing legalization for recreational and medical use, compared with 46% of those 65 and older.

What’s the difference between legalization and decriminalization?

Many states that have legalized marijuana initially decriminalized possession of a small amount. Broadly speaking, cannabis “legalization” means passing laws that allow the buying, selling and possession of marijuana, usually with restrictions on the age of the consumer and the amount purchased.

Decriminalization, on the other hand, typically means that violating certain marijuana laws can still result in fines or other penalties but not criminal charges or jail time. 

While neither Nebraska nor North Carolina has legalized cannabis for recreational or medicinal purposes, both states have decriminalized low-level marijuana offenses.

In North Carolina, possession of half an ounce of marijuana or less is considered a Class 3 misdemeanor punishable by a $200 fine, “but any sentence of imprisonment imposed must be suspended.”

In Nebraska, the first-offense possession of an ounce or less is punishable by a maximum fine of $300 and a possible requirement to complete a drug education course. A second conviction is considered a misdemeanor, punishable by a maximum fine of $500. Subsequent convictions are also misdemeanors, punishable by a maximum fine of $500 and up to seven days in jail.

The US Virgin Islands decriminalized recreational marijuana in 2014, decreasing penalties for possession of an ounce or less from a $5,000 fine and a year in jail to a maximum $200 fine and no jail time.