What states have legal weed? Will Congress OK it? The latest on federal marijuana legalization

It seems like just yesterday that New Jersey was caught in a years-long soap opera of "will they" or "won't they?"

Fast forward a couple of years, and New Jersey's cannabis industry is already nearing a $300 million market that experts largely agree will hit billion-dollar territory before too long.

But what's going on with the rest of the country?

Until cannabis is legal on the federal level, there will always be some level of restrictions. Universities aren't able to touch the plant, in most cases, since they receive federal funding -- which could be jeopardized by breaking federal law. Cannabis businesses are severely limited in banking operations, from opening a checking account to even taking credit cards, since federally-insured banks can't do business with what is, technically, a large-scale drug operation. The bigger businesses can't even transport their products across state lines, even if those two states legalized weed.

Even card-carrying medical marijuana patients risk potential arrest and conviction every time they buy, possess or consume even the smallest amount of licensed, legalized cannabis.

"It's incomprehensible that it's still a federal crime to possess the tiniest amount of cannabis, even in states where it's legal," said Karen O'Keefe, state policies director at the Marijuana Policy Project, which promotes policies to legalize cannabis on the state and federal levels.

With that in mind, let's take a look at where marijuana legalization sits in the United States.

Why is marijuana still illegal on the federal level? I thought it was getting close!

In short: Legal weed is largely (but not entirely) a progressive, Democratic issue and Democrats lost control of the House.

There was some momentum in the House from 2018 to 2022. The biggest success story was the Farm Bill of 2018, which allowed farmers to cultivate hemp. That bill allowed for the boom of products with low doses of CBD, from topical creams to supplements.

Last year, there was some level of expectation that Congress would be able to pass comprehensive cannabis reform legislation. Senate Majority Leader Chuck Schumer (D-New York) took up the issue. The House even passed the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which would have decriminalized marijuana at the federal level and open cannabis up for unprecedented research possibilities.

But the issue was unable to get past the filibuster in the Senate. Neither did the Secure and Fair Enforcement (SAFE) Banking Act, which would have allowed federally-insured banks and credit unions to take on cannabis businesses, which often operate on a cash-only basis due to banking restrictions.

In the end, it was simply a bridge too far.

So legal weed is basically dead in Congress?

Not so fast.

Even though those bills never made it past the House, it wasn't for lack of trying. Months of negotiations meant that there was actual movement on both sides of the aisle -- and that momentum doesn't just evaporate, said Morgan Fox, political director for the National Organization for the Reform of Marijuana Laws, or NORML, the country's longest-running marijuana legalization advocacy group.

"The support for bipartisan reform is only growing. Lawmakers are starting to realize that there are very few issues that have this much public support," Fox said. "We're starting to see more and more research that shows that people on both sides of the political spectrum consider this to be a priority issue. It's one of the few things everyone can kind of agree on."

Consider a Gallup poll released in November: Not only did 68% of adults favor legalizing marijuana, but 81% of Democrats, 70% of independents and 51% of Republicans also supported it.

Even in a divided Congress, Fox believes there's room for optimism. Even if the game-changing cannabis bills don't pass, there's plenty of "incremental" movement to be had. The Harnessing Opportunities by Pursuing Expungement (HOPE) Act would make it easier for states to expunge marijuana convictions from an offender's record. The Gun Rights and Marijuana (GRAM) Act would allow those in legal weed states to own firearms.

Both bills were introduced in Congress by Republicans during the last session.

"There's definitely the opportunity to move the conversation a little further down the road," Fox said. "If you look at the history of cannabis reform, it's always been about incrementalism -- you start on the local level and go to the state. You start with decriminalization and go to more comprehensive legalization.

"This Congress represents an opportunity to get a lot of lawmakers more comfortable with eventually voting yes."

Where do the states fit into all of this?

For many advocates, the clearest path to resolving the marijuana legalization issue is through the states.

When Gov. Phil Murphy enacted the New Jersey marijuana legalization laws, the Garden State became the 13th state to legalize cannabis for adult use, along with Washington, D.C. Since then, another nine states have either passed referendums or enacted laws to legalize weed — including New York, Connecticut, Maryland and Virginia

Another 16 states have legalized medical marijuana but not adult use.

"The path to legalization and federal reform is through the states," O'Keefe said.

Right now, nearly 73% of all Americans live in a state that allows recreational or medical marijuana laws. And there's more where that came from.

There are realistic legislative efforts to legalize weed in Minnesota, Hawaii, New Hampshire and Delaware, O'Keefe said. And the process is also underway to get the issue on the ballot in Ohio, she said.

Of those states, O'Keefe highlighted New Hampshire as a potential lynchpin: It's the first state where legalizing cannabis has been proposed by both a Republican governor and Legislature.

It's a big deal that may represent a sea change and the next phase of the legal weed movement: "There aren't many blue states left," O'Keefe said.

If there's a key number here, it's 30: If 30 states legalize cannabis, that means they'll have 60 U.S. senators -- a supermajority, enough to get legal weed through the filibuster.

"With these changes in Congress, it just seems clear that more pressure is needed from the states to get to the federal government," O'Keefe said.

But the legal weed movement hasn't been without its defeats on the state level. On March 7, Oklahoma voters overwhelmingly shot down a legal weed ballot measure. And while South Dakota voters legalized weed on the ballot in 2020, the courts overturned it soon after. South Dakota Gov. Kristi Noem, who participated in the "vote no" campaign, directed the state's highway patrol to file a lawsuit overturning it.

Other ballot measures failed in Arkansas and North Dakota. And while the Virginia General Assembly legalized weed in 2021, Republicans have since taken control -- and voters elected Republican Gov. Glenn Youngkin. Now, there's no rush to approve enabling legislation, O'Keefe said.

The end result could be a gray area, similar to what New Jerseyans dealt with for three months between the 2020 election and Feb. 22, 2021, when Murphy signed laws into place officially legalizing weed.

How does President Biden feel about all this? Wasn't he famously an anti-drug crusader?

You're not wrong.

Biden has a mixed record on marijuana both in the Oval Office and as vice president. But activists still blame him for his role (as chairman of the Senate Judiciary Committee) in kicking off the "War on Drugs," which kicked off decades of arrests, convictions and prison sentences, even for nonviolent offenders.

But while he's unlikely to ever join in on a 420 smoke-out, his public stance has largely changed with the tide of public opinion. As vice president in 2014, he said in a TIME Magazine interview that "the idea of focusing significant resources on interdicting or convicting people for smoking marijuana is a waste of our resources."

As president, it's a mixed bag, advocates say.

He has supported leaving legal weed decisions up to the states, former Press Secretary Jen Psaki told Politico last year.

But in March 2021, the administration suspended or fired dozens of staffers over past marijuana use, the Daily Beast reported at the time.

The biggest moment came in October, when Biden pardoned everyone charged with a federal marijuana possession conviction. That action was largely symbolic and only affected an estimated 6,500 people, according to the White House, as millions more have been convicted under state and local laws.

But it took nearly five months until applications for pardon certificates were finally made available last Friday, Fox said.

"This seems like a pretty easy fix, something that could be instituted fairly quickly. The process is already there," he said. "While the pardons may be technically granted, they're still showing up on a third-party background check. If they don't have a certificate, the pardon is basically useless."

And while Biden's proclamation directed Attorney General Merrick Garland and Health Secretary Xavier Becerra to review marijuana's status as a Schedule I drug, that process could take years, Fox said. And in the end, they may simply recommend to reschedule it as a Schedule II drug -- similar to a pharmaceutical amphetamine or opioid, which are illegal if not prescribed by a doctor.

"That would be a disaster, and wouldn't do anything positive in terms of eliminating the federal and state conflict," Fox said.

That's the main driver of lobbying efforts right now -- getting Biden on board with de-scheduling cannabis and removing it from the list of controlled substances, Fox said.

But the administration's power only goes so far.

"At the end of the day, it's going to come down to Congress," he said.

Mike Davis has spent the last decade covering New Jersey local news, marijuana legalization, transportation and a little bit of everything else. He's won a few awards that make his parents very proud. Contact him at mdavis@gannettnj.com or @byMikeDavis on Twitter.

This article originally appeared on Asbury Park Press: Weed is legal in NJ, but what about federal marijuana legalization