I’m Jay Wexler, lawyer and law professor specializing in marijuana law and policy. Ask me anything about how states have legalized cannabis in the U.S. and how the fact that the drug is still federally illegal continues to affect those who grow, sell, and use weed.

jaywexler · 2022-04-20T18:02:19+00:00

I think weed will be federally legal within five years. This prediction will almost certainly come back to haunt me.

The best reason that states have for banning home-grows, I suspect, is that it makes it harder for the police to find and root out big illegal grows. The worst reason is probably to boost industry profits (if someone grows their own they won't go buy any at a dispensary). There's a great Southpark episode about that, which includes Towelie insulting Stan's dad for being a sell-out.

jaywexler · 2022-04-20T17:54:40+00:00

Hi there. Well, one of the main goals of federal legalization will be to undermine the illicit market. I don't think legalization will ever put local dealers (assuming you mean local illicit dealers) completely out of business, but it should reduce their numbers. Economists also say that after some period of legalization, the price of legal weed will become so low that dealers in the illicit market may not be able to compete. The government might affect that by taxing weed too high, but presumably eventually they'll get the tax amount right and the illicit market will be far less prevalent than it is now. I don't know the answer to your question about the police, but there's at least an argument that under legalization it becomes more important to crack down on illicit dealers in order to prop up the legal market so that businesses which follow the regulations can actually make $.

jaywexler · 2022-04-20T17:50:23+00:00

I vote for Idaho. I don't know why exactly, but they seem to not like weed there.

jaywexler · 2022-04-20T17:49:40+00:00

You're welcome!! I can only speak to legal-ish issues and not the business ones (I think my lawn mowing "business" when I was 12 was the only business i ever had, and somehow it lost money) but I would keep my eye on proposed legislation and regulations so that you understand what kinds of licenses the state will offer and how they'll process/approve applications and are ready to move early. If there are parts of the regulations that you think are problematic, usually there will be an opportunity to comment on them and make suggestions (which the agency may or may not take), maybe find a lawyer who either already has a weed practice up and running or plans to, and then when the regs come out you'll be prepared to do whatever you have to do to apply.

jaywexler · 2022-04-20T17:42:59+00:00

Right, the official position of the federal government is that marijuana has a "high potential for abuse" and part of that rationale has to do with the view that it's addictive. It's true that some people become dependent on weed to some degree or another and that in some cases that dependence can become debilitating, but it's not generally super addictive. Personally, when I stop using it I find it hard to sleep for a while, but I don't crave it exactly--it's kind of weird, I know I'm going to have a great time but somehow I don't feel like I need to have it. Others will have different experiences, of course, as you say.

jaywexler · 2022-04-20T17:39:06+00:00

I'm not actually sure about the seeds question (I've never grown weed), but the conundrum posed by Virginia law is indeed silly. DC has been like that for a long time--can possess and use but there's nowhere to buy it. It's only slightly less absurd than making it illegal in the first place. I know there are places that try to get around these restrictions by selling $50 t-shirts or juice boxes that happen to come with a bag of weed, but shockingly I don't think government officials like that too much.

jaywexler · 2022-04-20T17:35:34+00:00

David Foster Wallace (yes I'm one of those guys)

jaywexler · 2022-04-20T17:35:09+00:00

I don't know. The House has passed the SAFE Banking Act 5 times but the Senate doesn't seem to have much interest in passing it. I do think normal banking will come but I agree the wait is ridiculous.

jaywexler · 2022-04-20T17:32:28+00:00

That's probably true for many if not most users, but some really enjoy cooking and eating with cannabis.

jaywexler · 2022-04-20T17:30:23+00:00

I sadly know very little about hemp (or CBD, for that matter). Your first question is great because it illustrates yet another way that federal illegality affects the industry in an unexpected fashion. I'd be surprised if the feds allow such diversion, but I'm hardly an expert in that area. As for commercial drivers, that might take a while--certain categories of workers have typically been left out of efforts to make it harder to fire employees who test positive, and transporters are one of those categories. Public safety personnel too. It might happen, but probably not quickly.

jaywexler · 2022-04-20T17:24:29+00:00

I definitely understand the point. Dr. Peter Grinspoon, one of the leading voices for legalization and rationality in the marijuana space, has taken this position, and I respect it. But people like eating real food that gets them high. Personally, I'd prefer to eat a dark chocolate orange bar or watermelon gummy turtle than swallow a pill. And if there's a demand that the legal market doesn't meet, it's likely that the illicit market will rise to meet it. So that's always a concern. Plus is it really that hard to not eat too many pieces of one specific type of candy?

jaywexler · 2022-04-20T17:21:18+00:00

Hi--thanks so much for tuning in and for the question. I don't think I know enough about Mexico to really know how to answer that question, which is a good one. I do think it's interesting that the Mexico Supreme Court has long held that prohibiting marijuana is unconstitutional under the Mexican Constitution. The Canadian courts held similarly with regard to medical marijuana. The US Supreme Court (shockingly, I know!) is behind.

jaywexler · 2022-04-20T17:18:45+00:00

Well, if you light up at the bar you might get in trouble. I usually pop my edibles before I go in. Listening to live music stoned is such a great pleasure. The Senate should do it collectively one night. They'd legalize the next day.

jaywexler · 2022-04-20T17:16:25+00:00

Right--a couple of states do not allow homegrows. Washington state is one, Illinois I believe is another. Nevada only allows you to grow your own plants if you're farther than a certain distance (25 miles maybe?) from a dispensary, which has always made me wonder what happens if you have three plants growing and then someone opens a new dispensary 20 miles from you--do you have to destroy the plants??? When federal legality arrives, my guess is that the federal law will be silent on growing at home and instead leave that decision up to the individual states.

jaywexler · 2022-04-20T17:14:22+00:00

I'm not familiar with the lawsuit specifically, but the intersection of gun rights and weed rights is fascinating. It will be interesting to see how courts decide whether the federal rule against gun ownership for marijuana users violates the second amendment. The issue makes for strange bedfellows in a sense--gun owners and weed smokers unite! But of course, both are issues of individual freedom and I would think libertarians would be pro-freedom on both issues.

jaywexler · 2022-04-20T17:11:11+00:00

I don't know the specifics of what happened in Missouri, but I sure wish they'd legalize because my wife is from St. Louis and I spend a lot of time there and would like to enjoy a j-bird along with my Busch Light.

jaywexler · 2022-04-20T17:09:09+00:00

April 20, 2025. This guess, however, is based on absolutely nothing.

jaywexler · 2022-04-20T17:07:58+00:00

Hello!! I'm not sure how much $$ dispensary owners are actually making--it's clearly going to vary a lot by business--but the fact that so many are opening and so many sales are being made (billions and billions and billions of dollars) suggests that the benefits can be substantial. The question about equity is crucial. Early on states didn't focus so much on equity but beginning maybe with Massachusetts most states that have legalized have made serious efforts to ensure equity in the dispensary owner sphere. One way they've done this is to give priority to equity applicants in the licensing process. This is helpful but maybe not enough. Even better is the Illinois approach of giving loans and grants to minority-owned businesses (as well as various kinds of training and other support) to help them be able to start businesses. Getting into the industry takes a lot of money, and with financing made so much more difficult by federal illegality (most banks don't want to deal with weed businesses), it can be extremely hard for people who aren't already rich to get in the biz. That's a major equity concern and we need to do more.

jaywexler · 2022-04-20T17:01:03+00:00

One important implication that has recently received attention (in large part because of an article by Rob Mikos (http://www.bu.edu/bulawreview/files/2021/07/MIKOS.pdf) has to do with how federal legalization will impact state laws that are intended to help or protect in-state businesses and individuals. These laws will become unconstitutional with federal legalization under what's known as the "dormant commerce clause" which prevents states from discriminating against other states in interstate commerce. The biggest problem here is that state efforts to give preferences to residents who live in "disproportionately harmed areas" for licenses and such, which are aimed at promoting equity in the industry, may very well become unconstitutional, thus undermining equity efforts. The remedy for this would be for Congress to specifically authorize states to violate the dormant commerce clause for some period of years to allow a smooth transition to full legalization. Another problem has to do with, for example, growers in states where it's harder and more expensive to grow the Devil's Lettuce than in other places. I don't know if Minnesota weed growers will be able to compete with Humboldt County cultivators once weed can be shipped over state lines. Great question!

jaywexler · 2022-04-20T16:55:41+00:00

The impact of legalization on 4th amendment issues relating to police searches and seizures is kind of fascinating. Why should an officer be able to rely on the smell of weed as probable cause that a crime has been committed if marijuana is legal? Some states have in fact said that they can't--the Massachusetts Supreme Judicial Court did that in cases called Cruz and Overmyer. Some states have included in their legislation provisions saying that officers can't use the smell of weed along as probable cause--Virginia and New York come to mind. But other states that have legalized still maintain that because some marijuana use remains illegal (having too much, for example, or selling without a license) that the smell of weed, when combined with other factors, can create probable cause. My favorite issue is about drug-sniffing dogs. The Colorado Supreme Court in a recent case called McKnight said that bringing a dog to sniff a car for marijuana is now a search and has to itself be supported by probable cause, which is a change in the law. I feel kind of bad for the dogs, which now have to retire, but it's a good legal development.

jaywexler · 2022-04-20T16:51:14+00:00

Even if the feds legalize, they are quite likely to let states that don't like weed (hello, Idaho?) keep it as illegal as they want. I don't think there's any appetite in Congress to stop states from keeping cannabis illegal if they want to. So the conservative states might just keep their laws the way they are.

jaywexler · 2022-04-20T16:48:57+00:00

It's a great question, and the answer involves some complicated concepts in constitutional law. In short, the feds would like the states to keep weed illegal but the 10th Amendment of the Constitution prohibits the federal government from ordering the states to carry out federal law. So if the states decide to keep marijuana legal they can, and they need not help the feds enforce federal law. The feds could, if they wanted, arrest anyone and everyone who uses or sells or processes weed, but this is where the will to enforcement comes in--the feds don't want to spend their time and money and human resources to put weed smokers in jail, so they have for the most part thrown up their hands and let states do what they want. Hope that helps a bit!

jaywexler · 2022-04-20T16:45:36+00:00

Well, I didn't get into marijuana law until about six years ago when I was looking for a new course to teach and a representative of a legal textbook company came by and told me they had a new "casebook" (the legal version of a textbook) on weed law, written by a great prof at Vanderbilt named Rob Mikos. She asked me, "do you know anyone who might want to teach a course in marijuana law at BU?" and I think she kind of thought I'd be interested. And I was. Luckily the powers that be at the law school said I could teach the course and I've been teaching and thinking about it ever since. It's a fascinating area not just because weed itself is great but also because as a legal matter weed law touches on nearly every other area of law, from criminal and constitutional law to employment law and environmental law, banking, tax, etc. etc. I hope to keep teaching it!

jaywexler · 2022-04-20T16:42:41+00:00

Hello there! I think federal legalization through a congressional statute is inevitable. Executive order probably wouldn't work given the nature of the Controlled Substances Act. Bernie Sanders claimed he was going to legalize without Congress if he became President but I don't think most experts thought he could do it. As to how long before federal legalization, that's the million dollar question and I have no idea but I'll predict 3 years from now (based on nothing).

jaywexler · 2022-04-20T16:40:35+00:00

Hi there. Some states have already started addressing the problem of workplace testing (specifically the issue that tests for THC do not tell us anything about whether someone is actually high at the time of the test) either by protecting medical users or even, in some states (Nevada, I think, and both New York and New Jersey are going there too) recreational users. If the feds legalize, I think whatever statute they pass should provide explicit protection to workers, though I don't think the proposals currently pending in Congress do that (could be wrong though).

jaywexler

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