The movement to legalize marijuana dates back to 1970 when Congress passed the Controlled Substance Act (CSA), 21 USC 812, classifying marijuana a Schedule 1 drug along with LSD, heroin, and ecstasy. The Schedule 1 classification means these drugs have no accepted medical use, not even under medical supervision, and have a high potential for abuse. Despite this, in 1996, California voters passed Proposition 215, legalizing marijuana for medical use. Thus beginning the debate in earnest, over whether state level marijuana legalization is a violation of federal law and should be stuck down under the Supremacy Clause of the Constitution, U.S. Const. Art. VI,.C2.   

Over the next 13 years the medical marijuana industry grew in California, permitting those operating in compliance with the law to do so without fear of being criminally prosecuted by the State. Yet, the federal government continued pursuing prosecutions of those involved in the medical marijuana industry. But in 2009 the Department of Justice (DOJ) changed course when Deputy Attorney General David W. Ogden sent a memo to all U.S. Attorneys directing them not to prosecute those operating in “compliance with existing state laws providing for the medical use of marijuana.” This policy was expanded upon in another memo in 2013, by then Deputy Attorney General James Cole (the “Cole Memo”), further deprioritizing the marijuana ban on the federal level. Despite a brief recission of the policy in 2018 by Attorney General Jeff Sessions, it was reinstated shortly after his departure from office and remains the DOJ’s policy today. Notable, is the CSA provides the United States Attorney General the power to reschedule or de-schedule marijuana.  

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