Different State Laws Regarding Marijuana Production, Possession Lead to Uncertainty Among Federal and Texas Law Enforcement

Marijuana’s legal status has recently undergone major changes. The federal Controlled Substances Act (CSA) still places marijuana in its most highly restricted category, but more than half of the states in the U.S., including Texas, now allow medical marijuana to some extent. Colorado, California, and several other states have legalized the production, sale, and possession of small amounts of marijuana for recreational purposes. This has led to legal disputes over whether states like Colorado have exceeded their constitutional authority. For criminal justice advocates in Texas, where marijuana remains a highly controlled substance, law enforcement attention to suspected interstate drug trafficking raises a variety of constitutional civil rights questions.

The CSA classifies “marihuana” as a Schedule I controlled substance. 21 U.S.C. § 812(c)(I)(c)(10). The statute prohibits “manufactur[ing], distribut[ing], or dispens[ing]” a controlled substance, or “possess[ing] with intent to” do any of the aforementioned acts with a controlled substance. Id. at § 841(a)(1). Penalties depend on the identity and amount of the controlled substance involved. Texas marijuana law classifies THC, the active component of marijuana, in Penalty Group 2. Tex. Health & Safety Code § 481.103(a)(1). It identifies numerous offenses related to the manufacture, delivery, and possession of both Penalty Group 2 controlled substances in general and marijuana in particular. See, e.g. id. at §§ 481.116, 481.121.

The U.S. Constitution’s Commerce Clause authorizes Congress “to regulate Commerce…among the several States.” U.S. Const. Art. I, § 8, cl. 3. The CSA has faced constitutional challenges alleging that the federal government lacks jurisdiction to enforce federal drug laws within states that have legalized marijuana to various extents. The Supreme Court rejected this argument in Gonzales v. Raich, 545 U.S. 1 (2005), but it remains a controversial question. The federal government’s authority to deal with controlled substances that cross state lines, on the other hand, rather unambiguously falls within the federal government’s constitutional authority. This is where many recent legal challenges have arisen.

Movement of marijuana from states where it is legal to states where it is not has led to increased enforcement activity by both federal and state officials. This includes enhanced drug interdiction efforts and direct challenges to new state laws. One notable case involved an effort by two states, Nebraska and Oklahoma, to prevent a neighboring state, Colorado, from implementing Amendment 64, the voter initiative that legalized recreational marijuana use. The plaintiff states argued that Colorado’s law would allow movement of marijuana into their states, which would conflict with the federal government’s Commerce Clause authority and therefore violate the Supremacy Clause. U.S. Const., Art. VI, cl. 2. The Supreme Court, which has original jurisdiction over disputes between states, declined to hear the case. Nebraska v. Colorado, 136 S. Ct. 1034, 577 US __ (2016).

On a personal civil rights level, new questions have arisen about reasonable suspicion for traffic stops. Police in some jurisdictions have reportedly pulled drivers over solely based on license plates from states that allow marijuana possession. See, e.g., Roseen v. Klitch, No. 1:14-cv-00118, mem. dec. (D. Id., Mar. 30, 2015). In some cases, courts have allowed claims for violations of constitutional rights because of these stops. Vasquez v. Lewis, 834 F. 3d 1132 (10th Cir. 2016).

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

For over two decades, board-certified marijuana crime attorney Michael J. Brown has advocated for the rights of defendants in West Texas criminal courts. You can contact us online or at (432) 687-5157 today to schedule a confidential consultation with a member of our knowledgeable and skilled team.

More Blog Posts:

Texas Police Departments End Use of Drug-Testing Kits with History of False Positive Results, Texas Criminal Lawyer Blog, November 2, 2017

U.S. Senate Committee Retains Federal Ban on Interference with State Medical Marijuana Programs, as Texas Issues First Medical Marijuana License, Texas Criminal Lawyer Blog, November 2, 2017

FDA Approves Clinical Trials of Schedule I Controlled Substance, Texas Criminal Lawyer Blog, November 2, 2017

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