The governor’s action represents the first time the use of medical marijuana has been legalized in a state or territory through an executive order. The 23 states that have implemented related reforms have done through through legislation, as has the District of Columbia. It is not yet clear whether the governor’s executive order will be recognized by the federal government with the same force that state laws have been granted.
In a 2013 guidance memorandum, Attorney General Eric Holder was explicit that the Department would not relinquish its powers of marijuana enforcement to states under the Controlled Substances Act (CSA). He did, however, recognize that U.S. Attorneys could be strategic in prosecuting cases, explaining that “[i]n jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems….enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.”
Holder also cautioned that “[i]f state enforcement efforts are not sufficiently robust…the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions” to marijuana users.
Legislation enacted by Congress in 2014 contains a provision that prohibits the Department of Justice from preventing certain states from implementing state laws regarding the use, distribution, possession, or cultivation of medical marijuana. The federal law does not address medical marijuana laws in U.S. territories or executive orders generally.
Article IV of the Constitution, commonly known as the Territory Clause, grants Congress the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
The Obama administration has not responded to Puerto Rico’s executive order. President Obama has rejected the use of executive orders as a method to legalize marijuana on the federal level.