On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime
63 Pages Posted: 11 Mar 2009 Last revised: 9 Jun 2011
Date Written: March 9, 2009
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.
Keywords: commandeering, constitutional law, criminal law, drug policy, federal criminal law, federalism, marijuana, medical marijuana, preemption, social norms
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By Orin S. Kerr