While the Controlled Substances Act (CSA) of 1970 is updated and republished on an annual basis, it has dropped the ball regarding marijuana’s classification under its guidelines. With the wave of marijuana legalization across the country, the judicial system, unfortunately, varies in its interpretation of the CSA on a state-by-state basis.
This creates a “patchwork [system] when it comes to the legal status of marijuana.” Tropics, LP v. Green Peak Indus., Nos. 368240; 368282; 368446; 368461, Lexis 6952, at *1 (Mich. Ct. App. Aug 26, 2025). With no Federal framework of how to interact with states legalizing marijuana, courts are often in disagreement on how to apply marijuana legislation to statutes where state law has made it marijuana legal.
Without a coherent framework for how federal law should interact with evolving state experiments, multiple areas of law remain in a state of legal limbo due to the classification of marijuana under 21 U.S.C. § 812(c) sched. I(c)(10).
Areas Of Law In Legal Limbo Due To 21 U.S.C. § 812
Background On The Controlled Substance Act; 21 U.S.C. §812
There is a current inconsistency with reality stemming from U.S.C. § 812. The Controlled Substances Act lists controlled substances under five classifications called schedules. These schedules are related to the “drug’s acceptable medical use and the drug’s abuse or dependency potential.” United States Drug Enforcement Administration, Drug Schedules, Drug Scheduling, https://www.dea.gov/drug-information/drug-scheduling (last visited Nov. 10, 2025).
Lower schedules indicate higher abuse and dependency potential and no accepted medical use. Marijuana is listed as a Schedule 1 controlled substance along with heroin, ecstasy, and peyote. Id. Marijuana is also specifically mentioned in U.S.C. § 841, which imposes minimum prison sentences due to its schedule. As a result, marijuana is punishable at the highest level within the framework of controlled substance legislation.
This inconsistency between state interpretation and federal statutes can be seen in the recent trend of states passing legislation to both make marijuana medically legal and recreationally legal. Currently, 24 states have passed legislation to “[remove] certain state criminal prohibitions on recreational marijuana use by adults.” Joanna Lampe, Legal Consequences of Rescheduling Marijuana, CRS Products (Library of Congress). (May 01, 2024), https://www.congress.gov/crs-product/LSB11105. Medical marijuana has also been implemented by legislation in 38 states. See Joanna Lampe et al, The Federal Status of Marijuana and the Policy Gap with States, CRS Products (Library of Congress). (May 02, 2024), https://www.congress.gov/crs-product/IF12270.
Yet, due to the Constitution’s Supremacy Clause, as long as marijuana remains a Schedule I, “all unauthorized activities involving marijuana are federal crimes… including states that have purported to legalize …marijuana.” Lampe, Legal Consequences of Rescheduling Marijuana, (2024). This presents the current problem the judiciary faces when enforcing other areas of law under U.S.C. § 812.
This has been reinforced by the Supreme Court, where Justice Stevens made it clear that the state can not legalize marijuana, thus superseding federal law. See generally Gonzales v. Raich, 545 U.S. 1, 30 (2005). This evolving dilemma between state legislation and federal statutes has placed state judicial systems in a state of legal limbo, affecting a wide range of legal areas.
Family Law
Family Law is one area of law that has been affected by the lack of a framework for how states should interact with U.S.C. § 812. Due to marijuana remaining a Schedule I controlled substance, mothers who use marijuana face the risk of being separated from their children. This issue has been addressed in states like California through the passing of AB 2595, which asks Child Protection Services to review cases with marijuana under the same scope as alcohol. Cal Welf. & Inst. Code §328.2 (West 2025).
Yet, this is not the case for all mothers. In Georgia, a mother was originally listed on the child abuse registry due to marijuana use during her pregnancy. See C. W. v. Dep’t of Hum. Servs., 353 Ga. App. 360, 836 S.E.2d 836 (2019). Originally, in this case, an administrative judge ordered the Department of Human Services to remove her name from the registry. Id. DHS appealed this ruling to the superior courts, where the court ruled in favor of DHS. Id.
Finally, C.W. appealed this ruling and was reversed by Chief Judge Maden of the Georgia Court of Appeals. Chief Judge Maden, through a textualist interpretation of OCGA §15-11-2(56), found that “the evidence that C.W. used marijuana is not sufficient to substantiate ‘prenatal abuse’ under the applicable statutes. See OCGA §15-11-2(56) (LexisNexis 2024). See also C. W., 353 Ga. App. at 364.
Chief Judge Maden supported this claim by stating that “a drug is a controlled substance… only if it is listed as such in both Georgia and federal statutes. See C. W., 353 Ga. App. at 363. Unfortunately, recent court rulings have called this rationale into question. See United States v. Virgil, No.23-14231, 2025 U.S.
App. LEXIS 18910, at *12 (11th Cir. Jul. 29, 2025). See also United States v. Reid, No. 24-11000, 2025 Lexis 14308, at *4 (11th Cir. June 11, 2025).
These decisions demonstrate how the continued classification of marijuana forces courts to prioritize federal law. This judicial deference to federal law does not end at family law. It also governs how marijuana businesses are regulated, taxed, and stifled by patchwork systems.
Business Law
Marijuana businesses operating in states where marijuana is legal face some of the greatest uncertainty under U.S.C. § 812. Justice Thomas made it clear that marijuana businesses face harsh realities when facing tax law. See generally Standing Akimbo, LLC v United States, 141 S. Ct. 2236 (2021).
The US Tax Code is not favorable towards marijuana businesses, as businesses dealing in controlled substances can not make deductions like 26 CFR 1.61-3(a) 2020. Id. This means that even if a business is in the red after paying employees and general costs of business, it might own a sizable amount in federal income.
On top of this, marijuana businesses can not file for bankruptcy, in addition to not being allowed to use banking institutions, as it is banned by federal law. See Tropics, LP, 2025 Lexis 6952, at *1. See generally Standing Akimo, 141 S. Ct. at 2236. Business practices have also been stifled by improper implementations of track and trace systems by state governments. See generally HNHPC, Inc. v. Department of Cannabis Control, 94 Cal. App. 5th 60, 311 Cal. Rptr. 3d 771 (2023).
This track and trace system costs taxpayers $100 million, and its poor flagging system (meant to catch inconsistencies) leads to state-compliant businesses losing profits due to illegal businesses utilizing “burner distros.” Lester Black, Newsom’s Pot Regulator Faces Stunning Court Loss in Cannabis Trafficking Case, Cannabis. (Dec. 10, 2025), https://www.sfgate.com/cannabis/article/newsom-pot-regulator-faces-court-loss-21234810.php. See also HNHPC, 94 Cal. App. 5th at 60.
On top of the harsh business environments, marijuana businesses, which hire security guards due to the business dealing primarily in all cash, “might run afoul…for using a firearm in furtherance of a ‘drug trafficking crime.’ 18 U.S.C. §924(c)(1)(A).” See Standing Akimo, 141 S. Ct. at 2236.
A final worry for businesses operating a state-legal marijuana business is the prosecution under the Racketeer Influenced and Corrupt Organizations Act. See Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 876-877(CA10 2017). Taken together, these overlapping financial, regulatory, and criminal risks illustrate how the continued classification of marijuana under U.S.C. § 812 creates an untenable business environment even for enterprises operating in full compliance with state law.
Employment Law
Citizens consistently shoulder the burden created by this patchwork system governing the legal status of marijuana, not only in family and business law, but also in employment law. Due to marijuana remaining a Schedule I substance, courts have had varying interpretations of marijuana use as grounds for employers to terminate employees.
Even in states like California, where marijuana has been legal since 1996, courts have applied a narrow interpretation to the scope of voter-approved legislation. See Ross v. Ragingwire Telecommunications Inc., 42 Cal. 4th 920, 174 P3d 200, 70 Cal. Rptr 3d 382 (2008).
This narrow interpretative method remained the standard in California for many years in employment law surrounding marijuana use. See City of Riverside v. Inland Empire Patients Health & Wellness Ctr., Inc., 56 Cal. 4th 729, 300 P.3d 494, 156 Cal. Rptr. 3d 409 (2013). In City of Riverside v. Inland Empire, Judge Marvin R. Baxter proclaimed that the California Court of Appeals and the Supreme Court of California have found that state-passed legislation does not specifically mention employee rights, thus they are not protected under the statutes. The plaintiff in City of Riverside v. Inland Empire stated that “such rights were implied in the voters’ declaration of their intent”, yet the Supreme Court of California “rejected this notion.” Id.
This inconsistency of voter expectations of rights versus how courts interpreted them through statutes was finally corrected in California with the passing of AB 2188 and SB 700. See Cal. Gov’t Code § 12954 (West 2025).
Unfortunately, other states still find the rights of employees to not be defined under state legalization statutes. See Coats v DISH Network, LLC., 350 P.3d 849 (Colo.2015). Courts have utilized statutory interpretation and federal-preemption grounds to reject claims that private employers cannot terminate employees for state-authorized marijuana usage. See Noffsinger v SSC Niantic Operating Co. LLC.,273 F Supp. 3d 326, 335 (D. Conn. 2017). See also Callaghan v Darlington Fabrics Corp., C.A. No. PC-2014-5680, R.I. Super. LEXIS 88, at *7 (R.I. Super. Ct. May 23, 2017).
These rulings and textualist interpretive methods place the burden on citizens to prove the intent of the statute. This is a heavy burden that will not be rectified without state intervention, which remains reliant on federal guidelines. Just as federal marijuana classification complicates employee rights, it also raises serious constitutional concerns when applied to the exercise of Second Amendment rights.
Second Amendment18 U.S.C.§ 992(g)(3)(2018)
The federal classification of marijuana similarly impacts firearm ownership, where lawful state marijuana use can still trigger federal prohibitions on gun possession. Currently, the ATF Form 4473, the official form to document gun ownership and transactions, specifically asks applicants if they consume marijuana. Answering in the affirmative to this question will automatically void the application as 18 U.S.C.§ 992(g)(3) “prohibits any person [from owning a firearm] who is an unlawful user of or addicted to any controlled substance.” The dichotomy between state courts in the application of 18 U.S.C.§ 992(g)(3) under 21 U.S.C. §812 can be seen in many cases throughout many states.
In United States v. Conelly, the 5th Circuit concluded that “because there was no effort to show that Connelly, despite being a regular drug user, was intoxicated at the time she was arrested, applying 992(g)(3) to her was unconstitutional as applied.” United States v. Conelly, 451 F.3d 942, 948 (8th Cir. 2006). In United States v. Harrison, an Oklahoma District Judge, Partrick R. Wyrick, discussed how the “government …moves to dismiss the indictment… because…[of] the open question surrounding the constitutionality of § 992(g)(3).” United States v. Harrison, 153 F.4th 998, 1004 (10th Cir. 2025).
A Mississippi Court of Appeals ruled that the imposition of 992(g)(3) on marijuana users would not pass the Bruen test. See United States v Mitchell, No.24-60607, 2025 U.S. App. LEXIS 30668 (5th Cir. Nov. 21, 2025). See also N.Y. State Rifle & Pistol Ass’n v. City of New York, 590 U.S. 336 (2020). Additionally, Circuit Judge Edith Brown Clement held that “Our precedents further instruct that being a habitual marijuana user, without more, is insufficient to justify disarmament under § 922(g)(3).” Mitchell, 2025 U.S. App. Lexis 30668, at *52. The court’s dismissal of Harrison without prejudice allows Oklahoma prosecutors to revisit the issue and further expose the legal uncertainty faced by courts. See Harrison, 153 F.4th at 1004.
The dissent from United States v Mitchell also illustrates this uncertainty that the courts are facing in interpreting § 922(g)(3). Circuit Judge Haynes states, “it makes great sense at a minimum to place this case in abeyance so we can review what the Supreme Court holds in Hemani”. Mitchell, 2025 U.S. App. Lexis 30668, at *58. United States v. Ali Danial Hemani is set to be heard by the Supreme Court this coming session after the 5th Circuit upheld the District Court’s dismissal of 992(g)(3). See United States v. Hermani, No. 24-1234, 2025 U.S. LEXIS 4742 (U.S. Dec. 15, 2025).
This landmark case marks a significant development in the law governing marijuana use and firearm ownership, as it is the first time the Supreme Court has touched on marijuana use and gun rights. Hermani will set the precedent for future rulings, which will affect how citizens who consume marijuana in legalized states use their Second Amendment rights.
This uncertainty between the courts and federal regulations, illustrated in the above cases, raises serious Second Amendment concerns and highlights the border constitutional consequences of continued application of U.S.C. §812 regarding marijuana.
The Framework
Descheduling
There are two available options for the Federal Government to take. They consist of either descheduling or rescheduling marijuana. Descheduling would remove marijuana from the Controlled Substances Act completely, as had been done with hemp with the 2018 Farm Bill. Lampe, Legal Consequences of Rescheduling Marijuana, (2024). This bill completely removed hemp, a marijuana plant that contains less than 0.3% THC, from the CSA but left regulation of hemp to the FDA.
As of November 15, 2025, tighter restrictions have been placed on hemp due to the increased distribution of hemp products like CBD. See Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Pub. L. 119-37 (2025). See also Howard Sklamberg et al., Continuing Resolution Introduces Major Changes to Federal Regulations of Hemp Derived Products, Advisory, (Dec 10, 2025) https://www.arnoldporter.com/en/perspectives/advisories/2025/12/major-changes-to-federal-regu lation-of-hemp-derived-products.
This has placed many of the compounds found in hemp back under the CSA. Descheduling marijuana would be the most effective way to allow businesses that currently manufacture, dispense, and possess marijuana to alleviate the fear of facing federal prosecution. Without descheduling, marijuana businesses face the constant threat of federal prosecution, and courts will stay in a state of legal limbo.
Rescheduling
Rescheduling marijuana would, unfortunately, “ not bring the state-legal medical or recreational marijuana industry into compliance with federal controlled substance law.” Lampe, Legal Consequences of Rescheduling Marijuana, (2024). The rescheduling of marijuana to a Schedule III controlled substance, as mentioned by President Trump, would still require the FDA to approve prescriptions, where, under FDA regulation, marijuana is not an approved drug. See Katherine Faulders et al., Trump to sign executive order reclassifying marijuana: Officials, ABC News. (December 16, 2025),
https://abcnews.go.com/Politics/trump-sign-executive-order-reclassifying-marijuana-officials/sto
ry?id=128472615.
This would also require manufacturers and distributors of marijuana to register with the Drug Enforcement Administration and comply with regulatory standards for Schedule III substances. With rescheduling marijuana to a Schedule III, criminal penalties would remain relatively unchanged due to the imposed mandatory minimum sentencing for marijuana under U.S.C. § 841. Business practices would, however, be changed through the allowance of business expense deductions on federal tax filings. Lampe, Legal Consequences of Rescheduling Marijuana, (2024).
Both of these solutions would provide one thing: clarity for states on the federal government’s stance on marijuana. Currently, states that have legalized marijuana are largely shielded from federal enforcement through congressional appropriation restrictions. Congress has prohibited the DOJ from using federal funds to enforce marijuana prohibitions in those states. See Consolidated Appropriations Act, 2024, Pub. L. No. 118-42, (2024).
Yet, this does not protect marijuana businesses’ privacy from the federal government seeking information about license holders to support investigations. See United States v. Bureau of Cannabis Control, No. 20cv1375-BEN-LL, 2020 U.S. Dist. LEXIS 157919 (S.D. Cal. Aug 31, 2020).
The final authority regarding descheduling and rescheduling lies with the Department of Health and Human Services, whose binding determination directs the DEA. Descheduling or rescheduling marijuana would remove the burden from the states and the citizens and place it upon the federal government.
States have tried to revise their own statutes to match the realities that their voters want, yet the Constitution’s Supremacy Clause supersedes any progress the states make. Absent congressional or executive action, meaningful reform of 21 U.S.C. §812 remains unattainable.
Conclusion
While an average citizen might view the Federal government as leaning towards acceptance, the federal government’s half-in, half-out marijuana policy simultaneously permits and prohibits local use, creating an unstable framework that strains federalism and creates legal uncertainty. See generally Standing Akimo, 141 S. Ct. at 2236. With 38 states permitting medical marijuana and 24 allowing recreational adult use, the federal government must address the gap in its regulatory framework created by U.S.C. §812.
The issues appear clear in the analysis of the above areas of law, yet they are not the only injustices that arise under U.S.C. §812. Allowing this issue to remain unresolved will compound the burdens on states, courts, and citizens alike. President Trump has recently signed an executive order to have the Department of Health and Human Services submit a binding recommendation to reschedule marijuana to Schedule III. See Bill Barrow et al., Watch: Trump Orders Reclassification of Marijuana, Downgrading its Drug Schedule, Health. (Dec 18, 2025),
https://www.pbs.org/newshour/health/watch-trump-orders-reclassification-of-marijuana-downgra ding-its-drug-schedule.
Yet, as discussed above, the major changes from this executive order will apply to businesses in their application of 280-E. Lampe, Legal Consequences of Rescheduling Marijuana, (2024). Reclassifying marijuana to a Schedule III would not resolve significant legal consequences, including ongoing criminal penalties under U.S.C. §841, continued firearm prohibitions, persistent federal and state conflicts, and other collateral legal effects.
Accordingly, descheduling marijuana presents the most direct path toward legal stability, protecting individual rights, and providing clarity for the courts and regulated businesses.
Garrett Tayek has worked in the industry for over 12 years in Southern California. Currently Garret is now pursing JD to help businesses and citizens with the ever changing cannabis legal system.
