How federal weed legalization would impact Washington state

“If we are not prepared to commit on a nationwide scale, we are going to be left in the dust,” Rivers said.

This bill passed the Senate Wednesday on a bipartisan vote of 40-8, and now moves on to the House.

At a Jan. 10 hearing before the Senate Labor & Commerce Committee, Vicki Christophersen of the Washington CannaBusiness Association said Oregon and California have already passed similar laws. “What we don’t want is other states to get a head start,” she said.

Currently, 39 states and Washington, D.C., have legalized medical cannabis and 21 states and Washington, D.C., have legalized recreational marijuana. “Each of these legal state marketplaces act almost like an island, as import and export to other states are not permitted,” said attorney Tom Tobin of Perkins Coie’s Seattle office, whose practice includes some emerging marijuana issues.

“It’s especially exciting to practice in an area of law that is rapidly developing,” he said.

Several proposals have been floated in Congress to legalize or deschedule cannabis at the federal level – to remove the possession and sale of marijuana from federal laws that make it a felony. Marijuana is currently considered at the same level federally as heroin and other drugs. 

The previous Congress considered numerous similar proposals, including the Marijuana Opportunity, Reinvestment and Expungement Act, which would have removed pot from the federal Schedule 1 drug list; it passed the House. A high-profile bill was introduced in the Senate by Sens. Chuck Schumer, D-N.Y., Cory Booker, D-N.J., and Jeff Merkley, D-Oregon. “While Congress did pass a bill to encourage further medical research into cannabis, none of the larger reform bills passed,” Tobin wrote in an email. 

Where interstate commerce is concerned, one particular legal doctrine could cause challenges, such as when state and federal laws collide, Tobin wrote. Known as the dormant commerce clause, this doctrine allows courts to strike down state requirements that unreasonably burden interstate commerce.

An example of a ruling based on this clause pertained to mud flaps on vehicles. The U.S. Supreme Court ruled in 1959 that Arkansas had violated the clause when it required curved mud flaps when surrounding states had legalized straight mudflaps, meaning that trucks would need to change their mudflaps at the state line.

“The dormant commerce clause is an important consideration,” Tobin wrote. “Like in the mudflap case, state cannabis policies that impermissibly burden interstate commerce could be subject to challenge.”

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