What is currently considered to be a Schedule I substance with “a high potential for abuse and the potential to create severe psychological and/or physical dependence” and “no currently accepted medical use” may soon be decriminalized. U.S. Senator Chuck Schumer (D-NY) recently introduced the Marijuana Freedom and Opportunity Act, legislation attempting to decriminalize marijuana at the federal level. The bill, if passed, would remove marijuana from the list of scheduled substances in the Controlled Substances Act of 1970, giving states the ability to implement their own marijuana laws.

Marijuana’s Journey Through Capitol Hill 

Marijuana first made its debut on Capitol Hill in the Marihuana Tax Act of 1937, which taxed anyone who commercially dealt marijuana and imposed enforcement provisions including fines up to $2,000 and 5 years’ imprisonment. This tax act did not explicitly outlaw marijuana, but it effectively banned its sale and use through heavy regulation. In 1969, the Supreme Court of the United States struck down the Marihuana Tax Act in Leary v. United States for violating the Fifth Amendment.

Unimpressed, lawmakers simply replaced the Marihuana Tax Act with the Controlled Substances Act, which categorized substances according to their dangerousness and potential for addiction. In a report commissioned by President Nixon, marijuana was declared a Schedule I substance—the most restrictive category—for its high potential for abuse, potential to create severe dependence, and lack of accepted medical use.

Since then, states and the federal government have waged war over the right to control the legality of marijuana. In spite of the federal government’s stance on marijuana, 9 states and Washington, D.C., have legalized it for recreational use, and 30 other states have approved it for medical use.

The Marijuana Freedom and Opportunity Act 

According to Senator Schumer, “[t]he new Marijuana Freedom and Opportunity Act is about giving states the freedom to be the laboratories that they should be and giving Americans—especially women and minority business owners as well as those convicted of simple possession of marijuana intended for personal use—the opportunity to succeed in today’s economy.”

The Act goes beyond decriminalizing marijuana; it also provides funding for research, business development, and other regulations. If passed, the act would:

• decriminalize marijuana at the federal level by descheduling it from the Controlled Substances Act;
• provide 10 percent of marijuana tax revenues to the Small Business Administration to provide funding to women and minority-owned marijuana businesses;
• provide $250 million over 5 years to the administrator of the National Highway Traffic Safety Administration to carry out a study of the impact of driving under the influence and to develop reliable procedures to determine the impairment of a driver;
• provide $500 million over five years to the secretary of the Department of Health and Human Services to conduct research on the effects of marijuana on the human brain, its potential to treat diseases, and additional medical benefits;
• maintain the Department of the Treasury’s authority to regulate marijuana advertising in the same way it does tobacco advertising to ensure that marijuana businesses do not target children in their advertisements;
• authorize grant programs to state and local governments to provide expungement or sealing programs for marijuana possession convictions; and
• maintain the federal government’s authority to prevent marijuana trafficking from states that have legalized marijuana to those that have not.

Whether Senator Schumer can muster enough bipartisan support to pass the Marijuana Freedom and Opportunity Act remains to be seen. But one thing is for certain: the tides seem to be changing, and the federal government seems to be moving toward surrendering from the war and giving states the power to regulate marijuana.

Effect on Employment Practices 

While it is doubtful that the Marijuana Freedom and Opportunity Act will pass, this legislation (or any other future similar legislation) would have significant effects on employers’ drug policies. For instance, many employers in marijuana-friendly states use the fact that marijuana is illegal at the federal level as the rationale for firing employees who test positive for marijuana or denying employment to applicants who use marijuana (and in fact, businesses with federal funding are required to maintain a marijuana-free workplace). Without the federal law defense, employers that wish to maintain a drug-free work environment will have to reimagine or enhance their drug enforcement policies in order to continue having a drug-free workplace.

Keith A. Watts is a shareholder in the Orange County office of Ogletree Deakins.

Carlos Bacio is a law student, currently participating in the summer associate program in the Orange County office of Ogletree Deakins.