Banks, Marijuana, and Federalism

53 Pages Posted: 30 Aug 2014 Last revised: 12 May 2015

Julie Andersen Hill

University of Alabama - School of Law

Date Written: August 29, 2014

Abstract

Although marijuana is illegal under federal law, twenty-three states have legalized some marijuana use. The state-legal marijuana industry is flourishing, but marijuana-related businesses report difficulty accessing banking services. Because financial institutions will not allow marijuana-related businesses to open accounts, the marijuana industry largely operates on a cash-only basis — a situation that attracts thieves and tax cheats.

This Article explores the root of the marijuana banking problem as well as possible solutions. It explains that although the United States’ dual banking system comprises of both federal- and state-chartered institutions, when it comes to marijuana banking, federal regulation is pervasive and controlling. Marijuana banking access cannot be solved by the states acting alone for two reasons. First, marijuana is illegal under federal law. Second, federal law enforcement and federal financial regulators have significant power to punish institutions that do not comply with federal law. Unless Congress acts to remove one or both of these barriers, most financial institutions will not provide services to the marijuana industry. But marijuana banking requires more than just congressional action. It requires that federal financial regulators set clear and achievable due diligence requirements for institutions with marijuana-business customers. As long as financial institutions risk federal punishment for any marijuana business customer’s misstep, institutions will not provide marijuana banking.

Keywords: marijuana, bank, federalism, money laundering, FinCEN, FDIC, Federal Reserve, NCUA, credit union, cannabis

JEL Classification: G21, G28, K23, K42

Suggested Citation

Hill, Julie Andersen, Banks, Marijuana, and Federalism (August 29, 2014). Case Western Reserve Law Review (Symposium Issue), Vol. 65, p. 597, 2015; U of Alabama Legal Studies Research Paper No. 2489089. Available at SSRN: https://ssrn.com/abstract=2489089 or http://dx.doi.org/10.2139/ssrn.2489089

Julie Andersen Hill (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States
(205) 348-5973 (Phone)

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