Preemption under the Controlled Substances Act

35 Pages Posted: 2 May 2013

See all articles by Robert A. Mikos

Robert A. Mikos

Vanderbilt University - Law School

Date Written: April 29, 2013


States are conducting increasingly bold experiments with their marijuana laws, but questions linger over their authority to deviate from the federal Controlled Substances Act. The CSA bans marijuana outright, and commentators have assumed that Congress sought to preempt all state laws that might somehow conflict with the CSA. Under the preemption rule now in vogue, state marijuana reforms are preempted if they either require someone to violate the CSA or, more controversially, if they pose an obstacle to Congress’s objective of eradicating marijuana. Seeking to avoid such conflicts, government officials have scuttled a number of important state marijuana reforms. This Article aims to clarify state authority in this realm and to highlight more generally the dangers of embracing broad preemption rules. In particular, it suggests that the amorphous language of obstacle preemption has been used to block three types of state marijuana reforms that Congress either could not or clearly did not want to preempt: (1) laws that merely legalize marijuana-related activities; (2) laws that restrict such activities through novel means, such as licensing requirements for marijuana vendors; and (3) laws that only incidentally promote violations of the CSA, such as laws prohibiting employment discrimination against marijuana users. To avoid these mistakes, the Article proposes that courts and lawmakers employ a narrower and simpler direct conflict rule. Under this rule, state law is preempted only if it requires someone to violate the CSA. The Article shows why this direct conflict rule more closely comports with Congress’s preemptive authority and its preemptive designs. It also suggests that the rule should provide some much-needed clarity on an issue that has befuddled commentators for years.

Keywords: Controlled Substances Act, preempt, preemption, controlled substances, marihuana, marijuana, cannabis, medical marijuana, legalize, legalization, federalism, drug policy

Suggested Citation

Mikos, Robert A., Preemption under the Controlled Substances Act (April 29, 2013). Journal of Health Care Law & Policy, 2013, Vanderbilt Public Law Research Paper No. 13-23, Available at SSRN:

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)


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