"Cooperative Federalism and Marijuana Regulation"

The title of this post is the title of this notable new paper co-authored by Erwin Chemerinsky, Jolene Forman, Allen Hopper and Sam Kamin and now available via SSRN.  Here is the abstract:

The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. Since 1996 twenty states have legalized marijuana for medical purposes and, in November 2013, Colorado and Washington legalized marijuana for adult recreational use. In the fall of 2013, the federal Department of Justice (“DOJ”) announced it will not prioritize enforcement of federal marijuana laws in states with their own robust marijuana regulations, specifying eight federal enforcement priorities to help guide state lawmaking. This announcement has been widely interpreted to signal that the federal government will not enforce its stricter marijuana laws against those complying with the new Washington and Colorado laws so long as the new state regulatory regimes effectively prevent the harms the DOJ has identified as federal priorities.  Yet even if the federal government voluntarily refrains from enforcing its drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound.  Banks, attorneys, insurance companies, and potential investors concerned about breaking federal law are reluctant to provide investment capital, legal advice, or numerous other basic professional services necessary for businesses to function and navigate complex state and local regulations. And consumers face the risk of severe legal consequences.

The Article explains why, even if it wished to do so, the DOJ could not simply shut down all state marijuana legalization efforts using the federal government’s preemption power under the Supremacy Clause.  We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states.  The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria — criteria along the lines that the DOJ has already set forth — to opt out of the federal Controlled Substances Act (“CSA”) provisions relating to marijuana. In opt-out states certified by the Attorney General, state law would exclusively govern marijuana-related activities and the CSA marijuana provisions would cease to apply.  Federal agencies could continue to cooperate with opt-out states and their local governments to jointly enforce marijuana laws, but state law rather than the CSA would control within those states’ borders. Equally important, nothing would change in those states content with the status quo under the CSA.  This proposed approach embodies the best characteristics of federalism by allowing some states to experiment while maintaining a significant federal role to minimize the impact of those experiments on other states.