Abstract

http://ssrn.com/abstract=1356093
 
 

Citations (1)



 
 

Footnotes (215)



 


 



On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime


Robert A. Mikos


Vanderbilt University - Law School

March 9, 2009

Vanderbilt Law Review, vol. 62, p. 1421, 2009
Vanderbilt Public Law Research Paper No. 09-05

Abstract:     
Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana constitute the de facto governing law in thirteen states. This Article argues that these state laws and (most) related regulations have not been, and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. Just as importantly, these state laws matter, in a practical sense; by legalizing medical use of marijuana under state law, states have removed the most significant barriers inhibiting the practice, including not only state legal sanctions, but also the personal, moral, and social disapproval that once discouraged medicinal uses of the drug. As a result, medical use of marijuana has survived and indeed, thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, as commentators suggest, but contrary to conventional wisdom, it is the states, and not the federal government, that have emerged the victors in this struggle. Although the Article focuses on medical marijuana, the framework developed herein could be applied to conflicts pitting permissive state laws against harsh federal bans across a wide range of issues, including certain abortion procedures, possession of various types of firearms, and many other activities.

Number of Pages in PDF File: 63

Keywords: commandeering, constitutional law, criminal law, drug policy, federal criminal law, federalism, marijuana, medical marijuana, preemption, social norms

working papers series


Download This Paper

Date posted: March 11, 2009 ; Last revised: June 9, 2011

Suggested Citation

Mikos, Robert A., On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime (March 9, 2009). Vanderbilt Law Review, vol. 62, p. 1421, 2009; Vanderbilt Public Law Research Paper No. 09-05. Available at SSRN: http://ssrn.com/abstract=1356093 or http://dx.doi.org/10.2139/ssrn.1356093

Contact Information

Robert A. Mikos (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-7184 (Phone)
615-322-6631 (Fax)
HOME PAGE: http://law.vanderbilt.edu/faculty/faculty-detail/index.aspx?faculty_id=227
Feedback to SSRN


Paper statistics
Abstract Views: 12,099
Downloads: 1,947
Download Rank: 3,605
Citations:  1
Footnotes:  215

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.297 seconds