Unbundling Federalism: Colorado's Legalization of Marijuana and Federalism's Many Forms

Abstract

This short essay, prepared for the Ira C. Rothgerber, Jr. Conference on Constitutional Law, argues that various attributes we associate with federalism should not be deemed necessary components of federalism as a definitional or normative matter. Using Colorado’s recent legalization of marijuana as a case study, I show how two such attributes — an autonomous realm of state action and independent state officials with distinctive interests — can be pulled apart. State officials often further their interests and effectively oppose federal policy when they participate in the same statutory scheme as federal actors instead of operating in a separate, autonomous sphere. At the same time, state officials frequently rely on the autonomous lawmaking and executive powers of state governments to advance a decidedly national agenda, acting in cooperation with federal officials rather than independently of them. Unbundling federalism helps us get purchase on these pervasive practices instead of dismissing them as not-federalism.

Keywords: federalism, marijuana, legalization, Colorado