What Is the STATES Act?

The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act was a bill introduced in June 2018 by Senators Elizabeth Warren (D-MA) and Cory Gardner (R-CO) to ensure that every individual state is free to make its own determination about the best legal approach to marijuana within its borders. 

Specifically, the STATES Act amended the Controlled Substances Act (CSA) of 1970 in order to protect individuals and businesses acting in compliance with state regulations regarding cannabis from federal enforcement. The original bill garnered some support but was not enacted after being defeated on a voice vote.

Key Takeaways

  • The STATES Act was a bill introduced in June 2018 to ensure every individual state is free to decide the best legal approach to marijuana within its borders. 
  • Under federal law, it is a felony to produce, distribute or use marijuana, even though plenty of states permit the substance for medical or even recreational purposes.
  • The STATES Act did not pledge to legalize cannabis on a federal level, aiming instead to protect individuals and companies acting in compliance with either state or tribal laws.
  • The original bill garnered some support but was not enacted after being defeated on a voice vote.

Understanding the STATES Act

The debate about whether cannabis should be legalized has been an active one, dating back decades. Its legal status has also been the source of much confusion, particularly in recent years.

Under the federal CSA, marijuana is deemed a Schedule I drug, classified as having "a high potential for abuse" and being just as dangerous as heroin, LSD, or cocaine. In other words, it is strictly illegal to produce, distribute, or use the substance. Local laws, meanwhile, are generally much more lenient. Currently, 33 states permit marijuana for medical use, while 11 states have legalized it for recreational purposes.

The different paths adopted by individual states and federal law has understandably become a contentious issue. Somehow companies that sell or provide marijuana-related products can be permitted to do so in the state in which they operate yet still find themselves at risk of federal prosecution. The STATES Act was designed to address this puzzling conundrum, amending the CSA so that state-compliant cannabis businesses are no longer in violation of federal law.

Origins of the STATES Act

During the Obama administration, the Justice Department issued guidance to encourage prosecutors to take a light approach toward federal marijuana law enforcement in those states across the country in which cannabis was legal. This guidance attempted to bridge the legal gap between states that had moved to legalize the substance via legislation or citizen initiative and the continued non-legal status of various marijuana-related substances on a federal level. 

That attempt at a compromise was then turned on its head in Jan. 2018 by Jeff Sessions. The then-Attorney General's rescinding of earlier guidelines placed businesses and individuals operating in the cannabis industry within states' legal frameworks at risk of federal prosecution. Sessions' controversial move paved the way for the STATES Act to be introduced.

The STATES Act Method

The STATES Act did not move to legalize cannabis on a federal level. Rather, it recognized that dozens of individual states have passed separate legislation to decriminalize and/or legalize the substance to varying degrees. 

The bill, designed as a bipartisan effort, amended the CSA so that the provisions of the act do not apply to persons acting in compliance with either state or tribal laws related to the manufacturing, production, possession, administration, or delivery of marijuana.

The STATES Act maintained several aspects of the CSA, including a prohibition on the employment of persons under age 18 in cannabis operations and the sale of marijuana to those under age 21 except for medical purposes. The bill also went beyond recognizing just those states which have moved to legalize cannabis; it also extends protections to Washington D.C., U.S. territories, and federally-recognized tribes that have done the same or may do the same in the future.

Special Considerations

To become law, a bill must pass by both the House and Senate and then be signed by the president. The STATES Act has so far failed to overcome those hurdles. After Sen. Warren introduced the bill in the U.S. Senate, it was referred to the Senate Judiciary Committee for further consideration.

Sen. Gardner later made an effort to attach the bill as an amendment to the FIRST STEP Act, a criminal justice reform bill, during debates in December of 2018, while the 115th Congress was in lame-duck sessions. However, Senate Majority Leader Mitch McConnell blocked this effort through a procedural maneuver.

Other Proposals

A failure to enact the original STATES Act bill does not necessarily mean that the current conflicting legal ruling on marijuana is here to stay, however. In Nov. 2019 the House Judiciary Committee voted in favor of passing the Marijuana Opportunity Reinvestment and Expungement Act, also known as the MORE Act, to decriminalize marijuana at the federal level.

The House Judiciary Committee passed the MORE Act in a 24–10 vote, marking the first time in history that a congressional committee approved a bill to end federal marijuana prohibition.

The MORE Act demonstrated that a handful of government officials continue to fight to protect state laws and assert greater legal clarity on marijuana use. It still has some way to go before becoming enshrined into law, though, and it could easily meet a similar fate to the less aggressive STATES Act.

There is also another proposal in place called the SAFE Banking Act. This particular bill, which shares some characteristics with the STATES Act, seeks to permanently protect financial institution (FIs) that are keen to offer basic banking services to marijuana businesses in states where the substance is legal.