High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States

76 Pages Posted: 23 Mar 2013 Last revised: 21 Jan 2014

See all articles by David S. Schwartz

David S. Schwartz

University of Wisconsin Law School

Date Written: March 21, 2013


The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act ("CSA") has created a federalism crisis in which the duties of state officials to adhere to state or federal law is unclear. Current federalism doctrine cannot even tell us whether or not a local police officer who encounters a person in state-authorized possession of marijuana must arrest the person and seize the marijuana. The two most clearly applicable federalism doctrines -- the Tenth Amendment anti-commmandeering doctrine and the doctrine of federal preemption of state law under the Supremacy Clause" offer only unsatisfactory answers. Anti-commandeering doctrine is incapable of telling us whether a federally imposed duty to arrest and seize the marijuana possessor is impermissible commandeering, permissible "general applicability," or permissible preemption, let alone answer the more complex federalism questions posed by state marijuana legalization. Alternatively, a strong preemption approach, while capable of producing consistent results in theory, would entail the virtual abandonment of the anti-commandeering doctrine and of judicial enforcement of federalism more generally, while at the same time violating important premises of the "political safeguards of federalism" theory. The article argues that courts should pursue a middle path by applying a rigorous presumption against commandeering when considering the obligation of state officials to adhere to federal laws. This approach is faithful to consensus principles of federalism that should command the agreement of judges and academics on both sides of the judicial versus political safeguards of federalism debate. A presumption against commandeering, when applied to the CSA, requires that state officials be afforded broad latitude to enforce their states' legalization laws and have no compelled obligations to enforce federal law beyond a duty to refrain from active obstruction of federal officers. The extent of Congress's power to command state official compliance with the CSA can be considered if and when such an amendment to the CSA is under serious congressional consideration" something that may never occur given the current political trend.

Keywords: Supremacy, marijuana legalization, anti-commandeering, marijuana, Supremacy Clause, commandeering, anti-commandeering, medical marijuana, preemption, obstacle preemption, Federalism, clear statement rule

JEL Classification: K42

Suggested Citation

Schwartz, David S., High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States (March 21, 2013). Cardozo Law Review, Vol. 35, No. 567, 2013, Univ. of Wisconsin Legal Studies Research Paper No. 1222, Available at SSRN: https://ssrn.com/abstract=2237618

David S. Schwartz (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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