Five states will now legalize marijuana for both recreational and medical use.

During the November elections, A majority of New Jersey and Arizona residents voted yes on ballot measures to make recreational marijuana legal. Voters in South Dakota approved marijuana for medical use.

Montana voted for two initiatives to legalize, regulate and tax recreational marijuana for adults 21 and older, according to the Great Falls Tribune.

South Dakota has a second ballot measure that would legalize recreational marijuana, but the votes are still being counted.

This question isn't so much as the federal government not enforcing already existing law but rather States not being challenged or being able to put legalization on the ballot when it's a crime?

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    The easy answer is that the states are removing state laws that criminalized those substances; marijuana possession was largely prosecuted under state laws, not federal laws. Nov 9, 2020 at 18:22

2 Answers 2


States can pass whatever laws they wish (see Republican states with abortion bans), they're just subordinate to Federal law. In this case, it's a detente achieved through executive discretion. The Obama administration said it wouldn't seek to arrest users in states where it's legal

The Obama administration said Thursday that it would not challenge laws legalizing marijuana in Colorado and Washington state as long as those states maintain strict rules involving the sale and distribution of the drug.

In a memo to U.S. attorneys in all 50 states, Deputy Attorney General James M. Cole said the Justice Department is “committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent and rational way.” He stressed that marijuana remains illegal under federal law.

The Trump administration kept that... somewhat

“As a whole, these [anti-trust] investigations had an incredibly chilling effect on the [marijuana] industry,” said Joe Caltabiano, a co-founder and former president of Cresco Labs, whose acquisition of Origin House was among those scrutinized by DOJ. “They didn’t stop the cannabis industry. But they definitely slowed growth.”

Unless you fall under a federal investigation of some sort (or you try to fly with some), it's pretty unlikely you'll be arrested for carrying small amounts. Mostly that's handled by state and local enforcement.


There are many classes of activities that can prompt prosecution under both state and federal law. For instance, there is a federal law against assaulting USPS employees, but assault in general is prohibited by state law. When it comes to drugs, there are often state laws that might replicate federal law, be more lenient, or in some cases be more harsh. If there are no state laws against a drug, then its possession can be prosecuted only by the federal authorities. Since most low level drug offenses arise out of contact with local police, such as during a traffic stop, decriminalizing drug possession significantly reduces the number of people being prosecuted for such offenses. And as the federal government has often not enforced its laws when conduct doesn't violate federal law, this can make use of the drug effectively legal.

Besides this immediate practical effect, if a state believes that drug laws are unjust, eliminating state laws means that the state is no longer a participant in what prosecutions do occur, and makes a statement of opposition against those laws. These decriminalizations can reduce the perceived legitimacy of the federal laws, and put pressure on them to be removed. If the federal government insists on enforcing its laws, it is now in the position of not merely going against individual citizen's autonomy, but against state sovereignty. Since the drug war is promoted primarily by the Right, and they also claim to support state rights, this puts them in an awkward position.

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    Another consideration is that even in federal trials, citizens have the right to be tried by a jury of their peers. If the citizens of a state vote to legalize cannabis, but the federal government tries to prosecute people for possession, it will likely have trouble convincing jurors to uphold the federal statute, especially in cases that don't actually involve interstate commerce.
    – supercat
    Nov 10, 2020 at 2:24
  • @supercat this is less of a factor than it arguably should be, since any halfway competent prosecutor would filter for jurors who are willing in principle to convict for this during juror selection. Nov 10, 2020 at 3:30
  • @OscarSmith: In many communities, there wouldn't be enough potential jurors left to form a jury pool. Prohibition I ran into the same problem.
    – supercat
    Nov 10, 2020 at 9:15
  • @Supercat, what about Federal government going after states and not citizens for violations of the laws?
    – Noah
    Nov 10, 2020 at 23:00

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