Bringing more than 3.4 ounces of liquid on an airplane is still prohibited, but attorneys say sneaking pot past TSA checkpoints might not be as problematic as with other contraband.
Medical marijuana is now permitted in nearly half of the United States, with Illinois recently becoming the twentieth state in the US to allow doctors to legally prescribe pot to patients. But while federal law still considers weed to be illegal, attorneys say bringing marijuana onboard airlines for some domestic travel shouldn’t necessarily raise any red flags.
Aaron Kase, a freelance reporter and blogger for Lawyers.com, noted recently that Transportation Security Administration agents in some states may choose to look the other way if they stumble upon certain contraband that may be illegal on a federal level but allowed locally.
“Although it’s a try-it-at-your-own-risk scenario, airplane passengers in certain situations are being permitted to carry marijuana on board, even if TSA agents sniff out the drugs,” Kase wrote last week for the legal website.
According to Kase, boarding a commercial airliner with any federally-prohibited drug is still a no-no in the eyes of Uncle Sam, but the TSA — indeed a federal agency — isn’t obligated to scour luggage for marijuana and arrest every airport patron possessing a little bit of pot.
A statement on TSA’s official website acknowledges that the federal agents staffed at security checkpoints at airports across America do not search for any drugs, and if they discover contraband then they “will refer the matter to a law enforcement officer.”
“Whether or not marijuana is considered ‘medical marijuana’ under local law is not relevant to TSA screening because TSA is governed by federal law and federal law provides no basis to treat medical marijuana any differently than non-medical marijuana,” the official statement continues.
Elsewhere, though, the TSA admits “the final decision rests with TSA on whether to allow any items on the plane,” and nothing explicitly instructs those agents to detain or arrest anyone traveling with marijuana, medicinal or otherwise.
“I hear reports from people flying from one medical use site to another or flying from one part of California to another and they generally report that if they carry their authorization, they simply show the letter and are sent on their way and are allowed to keep their medicine,” National Organization for the Reform of Marijuana Laws attorney and founder Keith Stroup told Kase. “The same policy should apply Colorado to Washington or Washington to Colorado.”
Last year residents in those states voted to make marijuana legal for recreational use, even if a doctor’s note isn’t obtained. The Department of Justice hasn’t exactly endorsed those state laws, but in August Attorney General Eric Holder said that the federal government will not seek to pre-empt local legislation.
"We received good news this morning when Attorney General Eric Holder told the governor the federal government would not pre-empt Washington and Colorado as the states implement a highly regulated legalized market for marijuana," Washington Gov. Jay Inslee and Attorney General Bob Ferguson said in a statement two months ago.
"We want to thank the attorney general for working with the states on this and for finding a way that allows our initiative to move forward while maintaining a commitment to fighting illegal drugs. This reflects a balanced approach by the federal government that respects the states' interests in implementing these laws and recognizes the federal government's role in fighting illegal drugs and criminal activity," they said.
According to what attorney Stroup had to say to Kase, the TSA has so far been reluctant to enforce federal law in areas where state legislation has legalized marijuana.
“I’m delighted to hear that because I think it shows that TSA primarily is acting as it was intended when it was established, to protect all of us when we travel on the airlines and to thwart terrorists. It is not supposed to be an anti-drug agency,” Stroup said. “What nobody feels 100 percent comfortable with is it’s a grey zone you’re going through. It’s technically still illegal even though they aren’t enforcing it very strongly.”