Conflicting Federal and State Medical Marijuana Policies: A Threat to Cooperative Federalism

Authors

Todd Grabarsky, Benjamin Cardozo School of Law

Document Type

Article

Abstract

The legal status of medical marijuana in the United States is something of a paradox. On one hand, the federal government has placed a ban on the drug with no exceptions. On the other hand, forty percent of states have legal- ized its cultivation, distribution, and consumption for medical purposes. As such, medical marijuana activity is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented, nebulous zone of legality in which an activity is both legal and illegal, what one scholar on the subject has deemed "one of the most important federalism dis- putes in a generation." The issue has become heightened as two states have le- galized marijuana for recreational (non-medical) purposes as a result of the 2012 Election. This Article examines the issue from a federalism perspective. It begins by arguing that unpredictable enforcement by federal authorities in states that have legalized medical marijuana not only threatens state drug policy, but also the efficacy of federal enforcement. This argument is based on the premise that the federal drug ban exists as a collaborative effort between the states and the federal government. That the federal government relies on the assistance, infra- structure, and know-how of state and local governments is evinced by, as an example, the fact that ninety-nine percent of drug-related investigations and ar- rests are carried out by state agents. Federal enforcement in a state where medi- cal marijuana is legal antagonizes the state authorities to the point where coop- erating to enforce a dual-ban on drugs-like, for example, heroin-becomes more difficult. A solution to this problem, this Article proposes, would be for Congress to carve out an exemption from federal enforcement in states that have legalized the drug. This proposal would exhibit the federal government's respect for state drug policy, reestablish "cooperative federalism" between states and the federal government, and allow the federal authorities to allocate their limited resources to areas where they are likely to have lasting success. It should be noted that this Article steers clear from making policy and public health judgments or arguments about whether medical marijuana or oth- er drugs should be legal at the state or federal level. The policy arguments on both sides of the issue are vast and well-developed. Rather, this Article analyz- es how the varying messages about whether and to what extent the federal gov- ernment will enforce its ban poses a threat to cooperative federalism. The legal status of medical marijuana in the United States is something of a paradox. On one hand, the federal government has placed a ban on the drug with no exceptions. On the other hand, forty percent of states have legal- ized its cultivation, distribution, and consumption for medical purposes. As such, medical marijuana activity is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented, nebulous zone of legality in which an activity is both legal and illegal, what one scholar on the subject has deemed "one of the most important federalism dis- putes in a generation." The issue has become heightened as two states have le- galized marijuana for recreational (non-medical) purposes as a result of the 2012 Election. This Article examines the issue from a federalism perspective. It begins by arguing that unpredictable enforcement by federal authorities in states that have legalized medical marijuana not only threatens state drug policy, but also the efficacy of federal enforcement. This argument is based on the premise that the federal drug ban exists as a collaborative effort between the states and the federal government. That the federal government relies on the assistance, infra- structure, and know-how of state and local governments is evinced by, as an example, the fact that ninety-nine percent of drug-related investigations and ar- rests are carried out by state agents. Federal enforcement in a state where medi- cal marijuana is legal antagonizes the state authorities to the point where coop- erating to enforce a dual-ban on drugs-like, for example, heroin-becomes more difficult. A solution to this problem, this Article proposes, would be for Congress to carve out an exemption from federal enforcement in states that have legalized the drug. This proposal would exhibit the federal government's respect for state drug policy, reestablish "cooperative federalism" between states and the federal government, and allow the federal authorities to allocate their limited resources to areas where they are likely to have lasting success. It should be noted that this Article steers clear from making policy and public health judgments or arguments about whether medical marijuana or oth- er drugs should be legal at the state or federal level. The policy arguments on both sides of the issue are vast and well-developed. Rather, this Article analyz- es how the varying messages about whether and to what extent the federal gov- ernment will enforce its ban poses a threat to cooperative federalism.

Recommended Citation

Todd Grabarsky, Conflicting Federal and State Medical Marijuana Policies: A Threat to Cooperative Federalism, 116 W. Va. L. Rev. (2013).
Available at: https://researchrepository.wvu.edu/wvlr/vol116/iss1/4