Experts: Legal pot in Vermont would conflict with federal law

Marijuana Legaliztion
Vermont state Sen. Peg Flory, Attorney Mary Beth Buchanan and Vermont ACLU policy director Chloé White talk about challenges posed to marijuana legalization by potential conflicts between state and federal law.
Lawmakers discussing legalizing marijuana in Vermont have not taken into account the drug’s prohibition at the federal level, a state senator said Wednesday.

Sen. Peg Flory, R-Rutland, spoke on a panel that discussed conflicts between state and federal marijuana laws. The panel was hosted by the Vermont chapter of the Federalist Society, a conservative membership organization that supports limited government.

The event, open to the public, was largely geared toward lawyers. Thomas Little, who represented Shelburne in the Vermont House from 1992 to 2002, moderated the discussion.

Earlier this year, the Legislature approved a bill — ultimately vetoed by Gov. Phil Scott — that would have allowed Vermont adults to possess small quantities of pot and to grow a limited number of plants.

Attorney Mary Beth Buchanan, a former federal prosecutor, said that, despite the spreading legalization of medical and recreational marijuana at the state level, its use is still prohibited by federal law.

Buchanan said when state and federal laws conflict, the Constitution’s “Supremacy Clause” gives priority to the federal law.

Despite that, Buchanan said that 29 states have legalized medical marijuana and eight have legalized its recreational use. In Vermont, medical marijuana use has been legal since 2011.

Under the Obama administration, the Department of Justice declined to interfere with states’ legalization efforts.

Jonathan Adler, a law professor at Case Western Reserve University, said that even if the federal government wanted to crack down, it would have a hard time doing so. Adler said that as a practical matter, the feds simply don’t have the resources.

He pointed to the case of Colorado and Washington, the first two states to legalize recreational marijuana. Worldwide, the DEA “has less than one quarter of the officers as there are state and local law enforcement in Colorado and Washington,” Adler said, and so they “can’t go around rounding up people for growing marijuana at their house.”

But, Adler said, there are a host of other problems besides federal raids that states legalizing marijuana need to consider. Adler said banks and other financial institutions usually want to stay as far away as possible from backing the commercial production, transportation, or sale of marijuana.

That makes it hard for companies involved in marijuana, regardless of what state they operate in, to get loans or insurance. Adler said there’s also a question of whether lawyers, accountants, and other professionals bound by codes of conduct should offer their services to such companies.

“Can a lawyer, for example, draw up papers for a client to create an LLC that’s going to be a marijuana dispensary?” Adler asked. “That’s still illegal under federal law, and under the code of professional responsibility in every state, you cannot counsel a client about how to engage in an activity that will involve a violation of law.”

Peg Flory
Sen. Peg Flory, R-Rutland. Photo by Elizabeth Hewitt/VTDigger
Flory, an attorney, said that some of the problems Adler mentioned have been sticking points in Vermont’s legalization efforts.

Flory said Vermont lawmakers didn’t fully think out all the ways federal prohibition would affect dispensaries and citizens when the state legalized medical marijuana.

For instance, Flory said the Legislature anticipated medical marijuana dispensaries would be able to have nonprofit tax status, but “that didn’t happen.”

“There’s no nonprofit in their right mind that is is going to try to get the federal tax benefits for having something that’s federally against the law,” Flory said. “It just didn’t click with us — the bind we were putting them through when you’ve got the tension between state law being this and federal law being exactly the opposite.”

Drug testing for commercial driver’s licenses is also governed by federal law, Flory said, as is financing for many personal and business loans.

“What happens if you have a Farmers Home (Administration) loan or a G.I. federally funded loan?” Flory asked. “If the feds decide to enforce (the prohibition of marijuana), can they come in and call in your mortgage?”

Flory said the deep interconnections Vermont and its citizens have with federal laws and programs means that “this whole issue is unresolved because you don’t know what the feds are going to do.”

Chloé White, policy director of the Vermont ACLU, said she recognized the concerns about state-federal conflict.

Still, she said “the ACLU as a whole, nationally, is for decriminalization and ultimately legalization of marijuana.”

White said beginning criminal justice reform at the state level is essential.

“When it comes to marijuana,” she added, “we see that other states have implemented legalization and taxation and regulation successfully and there hasn’t been — of course we have a new administration — an enormous crackdown.”

White said she thinks states can serve as “bastions of innovation.”

After the panel discussion ended, Little said he thinks the biggest challenge of legalizing marijuana in Vermont is identifying unintended consequences, including conflicts with federal laws.

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  • Peter Chick

    We need experts to tell us this? And since when has federal law ever stopped Montpelier from making a bad move.

    • Brian Kelly

      Why do you feel justified in endlessly wasting billions upon billions of our yearly tax dollars continuing to arrest, criminalize, incarcerate, and hand out life long permanent criminal records to otherwise hard-working, tax-paying, adult citizens for choosing to consume marijuana although it is far safer than perfectly legal, widely accepted alcohol?

      “Marijuana is 114 times safer than drinking alcohol”


      “Marijuana may be even safer than previously thought, researchers say”

      “Marijuana may be even safer than previously thought, researchers say New study: We should stop fighting marijuana legalization and focus on alcohol and tobacco instead By Christopher Ingraham February 23

      Compared with other recreational drugs — including alcohol — marijuana may be even safer than previously thought. And researchers may be systematically underestimating risks associated with alcohol use.

      Those are the top-line findings of recent research published in the journal Scientific Reports, a subsidiary of Nature. Researchers sought to quantify the risk of death associated with the use of a variety of commonly used substances. They found that at the level of individual use, alcohol was the deadliest substance, followed by heroin and cocaine.”


      “The report discovered that marijuana is 114 times less deadly than alcohol. Researchers were able to determine this by comparing the lethal doses with the amount of typical use. Through this approach, marijuana had the lowest mortality risk to users out of all the drugs they studied. In fact—because the numbers were crossed with typical daily use—marijuana is the only drug that tested as “low risk.”


  • Gary Dickinson

    How much taxpayer money went to this braintrust to point out the obvious? Being a sanctuary state is also against federal law, but that’s different I guess.

  • Peter Everett

    It’s all about the revenue!!!! Why don’t the residents of Vermont wake up to this simple fact?? Revenue, revenue, revenue. Can you say Ca-ching. All the ways to the State’s coffers. Nothing else matters. It’s the REVENUE baby!!!! Break Federal laws. Don’t the other states break the Federal laws? Are they worried?? REVENUE!! Revenue are outweighs worry!!!

  • Terry_Burdick

    “Can a lawyer, for example, draw up papers for a client to create an LLC that’s going to be a marijuana dispensary?” Adler asked. “That’s still illegal under federal law, and under the code of professional responsibility in every state, you cannot counsel a client about how to engage in an activity that will involve a violation of law.”

    An industry that lawyers cant be involved in?

    Sounds like a winner.

  • Brian Kelly

    There is absolutely no doubt now that the majority of Americans want to completely legalize marijuana nationwide. Our numbers grow on a daily basis.

    The prohibitionist view on marijuana is the viewpoint of a minority and rapidly shrinking percentage of Americans. It is based upon decades of lies and propaganda.

    Each and every tired old lie they have propagated has been thoroughly proven false by both science and society.

    Their tired old rhetoric no longer holds any validity. The vast majority of Americans have seen through the sham of marijuana prohibition in this day and age. The number of prohibitionists left shrinks on a daily basis.

    With their credibility shattered, and their not so hidden agendas visible to a much wiser public, what’s left for a marijuana prohibitionist to do?

    Maybe, just come to terms with the fact that Marijuana Legalization Nationwide is an inevitable reality that’s approaching much sooner than prohibitionists think, and there is nothing they can do to stop it!

    Legalize Nationwide!…and Support All Marijuana Legalization Efforts!

  • Brian Kelly

    The “War on Marijuana” has been a complete and utter failure. It is the largest component of the broader yet equally unsuccessful “War on Drugs” that has cost our country over a trillion dollars.

    Instead of The United States wasting Billions upon Billions more of our yearly tax dollars fighting a never ending “War on Marijuana”, lets generate Billions of dollars, and improve the deficit instead. It’s a no brainer.

    The Prohibition of Marijuana has also ruined the lives of many of our loved ones. In numbers greater than any other nation, our loved ones are being sent to jail and are being given permanent criminal records which ruin their chances of employment for the rest of their lives, and for what reason?

    Marijuana is much safer to consume than alcohol. Yet do we lock people up for choosing to drink?

    The government should never attempt to legislate morality by creating victim-less marijuana “crimes” because it simply does not work and costs the taxpayers a fortune.

    Marijuana Legalization Nationwide is an inevitable reality that’s approaching much sooner than prohibitionists think and there is nothing they can do to stop it!

    Legalize Nationwide! Support Each and Every Marijuana Legalization Initiative!

  • Michael Olcott

    and all of these concerns are exactly the reason that cannabis needs to be legalized for personal use/grows first before any sort of legal market gets created. yes it means that there wont be any massive windfall into state coffers but at the most basic level of the argument it shouldnt be about that anyways. i am stunned by the willfull ignorance on this point from so many so called “small government” republicans and Independents/Libertarians.

  • David P. Bresett

    Rule of law? The rules brought down by the feds to stop the production of a plant, has to be the stupidest thing in the world. These laws, brought against anyone possessing a plant, were about oppression and hate. They bare no resemblance to common sense , what-so-ever. Yet here we are worrying about the feds, at state level. Get real already. These laws need to go bye-bye, now.

  • David P. Bresett

    This rule of law respects no one, so, no one should respect such a bogus law. The reasons for these laws is very suspect… Your sticking up for them shows no understanding of why they exist in the first place. Alcohol is the most dangerous drug on the planet, yet it’s legal.

  • bobstannard

    Pretty amusing that we need “experts” to tell us this. Yes, the feds do not recognize what the states are doing, but at some point more states will legalize than not and the feds will have to do something. It’s rather ironic that those controlling the reins constantly say that they support state’s rights, don’t you think?

  • JohnGreenberg

    “Surveys tend to be very biased towards the left.”

    That’s a pretty broad (and demonstrably false) generalization. Please provide some evidence for it.