The federal Controlled Substances Act prohibits the production, possession and distribution of marijuana everywhere in the United States.
Additional federal laws prohibit transportation of marijuana across state lines and disallow possession of marijuana on federal property.
Some states have reduced or almost eliminated the state penalties for marijuana production, distribution and possession. This decrease in penalties is usually called “decriminalization.” Decriminalization of a particular act means that the act is still something that society officially discourages, but that the penalties are so small or nominal that the discouragement is minimal. Decriminalization is not the same as “legalization,” which removes penalties altogether.
Several states that have recently decriminalized or legalized marijuana have done so in the expectation or hopes that the federal government would not enforce the Controlled Substances Act in their respective states. So far, those states’ hopes have been fulfilled.
Article II of the Constitution requires the president to “take care that the Laws be faithfully executed.” However, despite its enormous size, the federal budget is insufficient to facilitate full enforcement of every law. With that background, most presidents are forced to selectively enforce some laws, and that selectivity is sometimes based on politics.
For example, during Andrew Jackson’s term as president, the Supreme Court struck down the constitutionality of a Georgia law regarding interaction with Native American tribes. President Jackson vehemently disagreed with the court’s decision. President Jackson (knowing that, as chief executive, only he could enforce federal law) responded tongue-in-cheek that, “It’s (the Supreme Court’s) law, and they can enforce it.”
The current presidential administration, likely due to President Obama’s admittedly youthful, recreational use of marijuana, has not enforced the Controlled Substances Act within the state lines of states that have decriminalized or legalized marijuana use, sale and production.
Questions arise as to Ohioans who travel to and from states where state law allows for marijuana possession. Can Ohioans possess/consume marijuana while visiting those states? The practical answer is “yes,” subject to the caveat that such action is still illegal under federal law.
In deciding whether to follow federal law where it is not being enforced, you might consider two questions. Would you cheat on your taxes if the federal laws on tax payment were not being enforced by a particular IRS administration? Would you speed on a highway if you knew that no law enforcement personnel were physically close enough or otherwise able to effectuate your arrest, even though speeding is illegal?
Possession of marijuana includes possession within a person himself or herself. This means that marijuana in sealed bags swallowed and flown into Ohio from another state violate federal and Ohio law.
The same principle applies to marijuana that has been consumed for its intended use. Until fully metabolized, marijuana in the bloodstream in a passenger flying to Ohio violates both Ohio and federal law. Therefore, marijuana using travelers flying to Ohio must ensure that all of the marijuana is metabolized before taking flight. Otherwise stated, flying high is also a crime.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.