Murphy’s Mistake, and How to Fix it

MARIJUANA FEDERALISM: UNCLE SAM AND MARY JANE (Jonathan H. Adler, ed.) (Brookings 2020)

Vanderbilt Law Research Paper No. 20-34

22 Pages Posted: 12 Jun 2020

See all articles by Robert A. Mikos

Robert A. Mikos

Vanderbilt University - Law School

Date Written: June 11, 2020


In Murphy v. NCAA, the Supreme Court missed a golden opportunity to clarify the murky boundary between permissible preemption and impermissible commandeering. While the Murphy Court correctly held that Congress had commandeered states by prohibiting them from authorizing private activity (sports gambling) under state law, the Court erred in suggesting that the result would have been different had Congress simultaneously prohibited the private activity under federal law. Under a two-part test outlined by Justice Alito, the Court suggested that a federal prohibition on state authorization coupled with a federal prohibition on private activity would constitute permissible preemption rather than impermissible commandeering. This Chapter explains why the Court’s reasoning is mistaken, and it illuminates the consequences for marijuana law – a field in which, unlike sports gambling, Congress has banned many private activities. The Chapter also explains how to fix Murphy’s mistake. Namely, the true test for commandeering is not whether Congress has regulated private parties, but whether Congress has directed states to regulate private parties. This test is consistent not only with the result in Murphy and its commandeering forebears, but also avoids the pitfalls identified herein.

Keywords: marijuana, cannabis, marihuana, federalism, preemption, commandeering, sports gambling, professional and amateur sports protection action, paspa, states, betting, wager, gamble, bet, wagering, NCAA v. Murphy, alito, national collegiate athletic association, Christie, new jersey

Suggested Citation

Mikos, Robert A., Murphy’s Mistake, and How to Fix it (June 11, 2020). MARIJUANA FEDERALISM: UNCLE SAM AND MARY JANE (Jonathan H. Adler, ed.) (Brookings 2020), Vanderbilt Law Research Paper No. 20-34, Available at SSRN:

Robert A. Mikos (Contact Author)

Vanderbilt University - Law School ( email )

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Nashville, TN 37203-1181
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