(Editor’s note: This story is part of a recurring series of commentaries by cannabis experts. Julie A. Werner-Simon is a law professor, assistant professor at Drexel University School of Law, legal analyst for the Cannabis as an Emerging Business course at Drexel’s LeBow College of Business, and former federal prosecutor. This article is the second in a three-part series. Part I explains the various degrees of cannabis legalization in U.S. states).

Less than 7 million of the 335 million U.S. residents live in places where marijuana is not legalized.

The others have three degrees of legalization. There are 11 third-tier states (yellow in the pyramid above) with very limited access (SLA) programs, covering a population of only 90 million people.

In addition, 20 other states and two territories (Puerto Rico and the U.S. Virgin Islands) have second-tier agreements that cover only Medicaid (indicated in blue), with a total population of nearly 118 million.

Finally, 16 states and territories in the first tier (the green zone of the pyramid) have more than 120 million residents. All have legalized the recreational use of marijuana and also have medical facility status (second degree).

The figure at the top of the pyramid shows that there are only three states on the other side of the continent and one US territory where marijuana is completely illegal – that is, it is illegal to use it in any form.

They are Idaho, Kansas, Nebraska and American Samoa.

But these completely illegal places are usually classified as third-degree, severely limited access (SLA) or second-degree medical uses.

In general, states and territories with second-degree medical marijuana allow patients to possess and smoke at least medical marijuana, while states and territories with second-degree medical marijuana (such as Texas, which went to court this week to try to ban cannabis smoking) do not.

Idaho

In Idaho, where the governor vetoed an OAS proposal in 2015 that would have allowed low-THC marijuana for epilepsy, residents are pushing for reform even though the state’s Republican legislature is blocking it.

If the proposed 2022 marijuana initiative passes and is voted on, Idaho would move beyond OAS status and directly into the second-tier column.

Nebraska

About 190,000 Nebraskans (more than 10% of registered voters in the state) have registered to vote on the 2020 ballot to amend the constitution for medical purposes.

However, in September 2020, law enforcement filed a lawsuit to stop the citizens’ initiative.

The Nebraska Supreme Court did not include the measure on the ballot on procedural grounds, holding that the measure violated Nebraska’s single-issue technique of legalizing the possession, distribution, and production of medical marijuana.

Recalcitrants in Nebrask have proposed another medical marijuana initiative for the 2022 ballot.

Kansas

In Kansas, where citizens are not allowed to develop nationwide citizens’ initiatives, lawmakers drafted a medical marijuana bill last year, but it failed in committee.

However, the governor of Kansas has recently stepped in and is pushing for a new medical marijuana law, arguing that the additional revenue can be used to expand Medicaid and that a new medical marijuana rule was implemented in Kansas last month.

And this month, Democratic lawmakers in Kansas filed legislation to legalize recreational use.

American Samoa

Due to a lack of budget, there is even talk of legalizing American Samoa, a U.S. territory in the South Pacific located about 5,000 miles west of California. American Samoa, with a population of about 55,000, is the only inhabited U.S. territory whose residents were born on U.S. soil but are legally considered non-citizens.

Federal approach

Now look at the federal government’s approach to marijuana.

To date, federal law prohibits virtually all Americans from possessing any amount of marijuana. It is illegal to transport marijuana on an airplane, send it through the mail, or transport it across state lines.

The interstate movement of marijuana is an interstate commerce that the federal government has regulated since the nation’s founding.

Marijuana businesses are not eligible for federal small business loans or COVID-19 assistance funds, and are shunned by most federally insured banks because of the potential money laundering risk in financially facilitating the distribution of a federally prohibited drug.

Marijuana businesses cannot file for bankruptcy, a federal economic privilege enjoyed by other American businesses and individuals that allows them to start over or restructure.

Credit card transactions for marijuana are difficult. But big companies like American Express, Mastercard and Visa have traditionally not allowed their cards to be used for anything resembling marijuana.

And marijuana, even if used for medical purposes, cannot be claimed as a medical expense on your federal tax return.

Marijuana businesses (like other businesses) cannot deduct ordinary and necessary business expenses, a position the Biden administration defended as recently as February.

At that time, Acting General Counsel Elizabeth Preloger filed a brief with the United States Supreme Court in the case Standing Akimbo LLC et al. v. U.S. No. 20-645, arguing that marijuana remains illegal under federal law.

For example, the government correctly requested tax returns from the IRS for a marijuana business in the state of Colorado that was under investigation for unauthorized federal deductions.

In addition, marijuana use by military personnel – which is prohibited by Section 112a of the Uniform Code of Military Justice – is illegal, and marijuana use as a federal employee, including those currently working in the White House, remains illegal.

The American constitutional system is based on a dual and often competitive system of government: Federal and State. Marijuana has been illegal at the federal level for more than 50 years.

None of the states’ legalization plans in this space supersede federal preemption. Anyone (and any business) who ignores the federal illegality of marijuana is putting themselves at risk.

Ignorance is not bliss.

(Keep an eye on this space for part three of Werner-Simon’s identification of the extent of marijuana legalization across the country. Part three will outline that, despite recent White House dismissals for cannabis use, there are signs that federal marijuana prohibition is crumbling.)

Julie A. Werner-Simon is a legal analyst for the Cannabis as an Emerging Business course at the Drexel LeBow School of Business. She can be reached at [email protected].

The previous version of this series can be found here.

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