State Ballot Initiatives in the Federal Preemption Equation: A Medical Marijuana Case Study.
Posted: 6 May 2015
Date Written: May 5, 2005
State ballot initiatives represent a process of creating laws by citizen vote and are the only significant mechanisms for exercising direct democracy in the United States. They have a long history of advancing social agendas not otherwise able to survive the legislative process and most recently have addressed topics on which Congress cannot reach a national consensus, such as medical marijuana and physician-assisted suicide. Unfortunately, preexisting federal legislation in a topic area sometimes threatens to preempt these citizen-initiated solutions.
This Article examines the need for greater deference in preemption analysis for the category of state measures for which the initiative process is especially suited so that social experimentation may continue at the state level. Specifically, it uses California’s medical marijuana initiative as a case study to illustrate how a heightened presumption against preemption may be the best tool to reconcile federal and state law in the medical marijuana context.
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