The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. The ongoing clash of federal and state marijuana laws forces us to consider the preemptive power of federal drug laws and the appropriate roles for state and federal governments in setting drug policy. This conflict also creates debilitating instability and uncertainty on the ground in those states moving from prohibition to regulation of marijuana.
While the courts have yet to establish the precise contours of federal preemption doctrine in this context, we argue that the preemptive reach of the federal Controlled Substances Act (CSA) is relatively modest. Recognition of this legal reality likely played a significant role in the recent Department of Justice (DOJ) decision not to challenge the Colorado and Washington State ballot initiatives legalizing and regulating marijuana for adult use. Yet even if the federal government honors its commitment to not enforce federal drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound. Banks, attorneys, insurance companies, potential investors, and others—justifiably concerned about violating federal law—are reluctant to provide investment capital, legal advice, or other basic professional services necessary for marijuana businesses to function. Those using marijuana in compliance with state law still risk losing their jobs, parental rights, and many government benefits if their marijuana use is discovered.
We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states: The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria—criteria along lines that the DOJ has already set forth—to opt out of the CSA provisions relating to marijuana. State law satisfying these federal guidelines would exclusively govern marijuana activities within those states opting out of the CSA but nothing would change in those states content with the CSA’s terms. This proposed solution embodies the best of federalism by empowering state experimentation with marijuana regulation while maintaining a significant federal role in minimizing the impact of those experiments on states wishing to proceed under the federal marijuana prohibition.62-1-2