19 Oct Can you fly with weed now? An attorney explains.
Recently, Los Angeles International Airport (LAX) announced that the airport and its police force would no longer arrest or punish individuals carrying cannabis at the airport. According to LAX’s announcement, adults 21 years of age and over may carry up to an ounce of flower and eight grams of concentrate within the airport. The airport’s logic is that the police – who work for the State of California – have no jurisdiction to arrest individuals complying with state law.
Following the announcement, I received more than a dozen calls, texts, and emails from friends and clients asking if it was “really legal” to carry cannabis on airplanes. The question isn’t new. Since states like Colorado legalized recreational cannabis, people have asked whether they can “take it home” on the plane. Even people from states where cannabis is illegal have asked this question. Whether you’re traveling between cannabis-legal states or not, it doesn’t matter. In the end, it’s still illegal, regardless of the state (or airport).
More than 30 states, the District of Columbia, Guam and Puerto Rico now have medical cannabis programs. Nine of these states and the District of Columbia allow for adult-use cannabis. Despite the widespread legalization of cannabis on the state and local level, the federal government maintains its failed policy of cannabis prohibition. The Controlled Substances Act (CSA) lists cannabis in its most restrictive category – Schedule I – along with drugs such as heroin, LSD, GHB, MDMA, and Peyote. Even if this classification is wrongheaded, it’s the law.
Some argue the U.S. Constitution leaves cannabis laws to the discretion of the states. Unfortunately, the Supreme Court disagrees. In 2005, they upheld the federal government’s authority over cannabis, ruling 6-3 that the Commerce Clause permitted the federal government to regulate wholly intrastate cannabis production and consumption. This marked the most expansive interpretation of the Commerce Clause in the last fifty years.
That means the law is settled – for now. States do not have the authority to legalize cannabis and, therefore, passengers should not believe that it is legal to fly with cannabis. Remember, security is performed by the Transportation Security Administration, which is within the Department of Homeland Security, a federal agency. Also, the airways are regulated by the federal government through the Federal Aviation Administration. Perhaps most crucially, when you travel across state lines, you are subject to federal law, not state law.
Do people travel with cannabis on airplanes? Of course! You just can’t assume it’s legal, just because the federal laws aren’t being enforced. At any point, one of these high fliers can be pulled from a security line, and arrested for possession of a Schedule I drug. Here’s my advice: Just buy more after you land. Or, if the state still has antiquated cannabis laws, then vote in November!