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On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime

Posted by on Tuesday, October 27, 2009 in Articles, Volumes.

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute the de facto governing law in thirteen states. This Article argues that these state laws and most related regulations have not been and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress’s preemption power by the anti-commandeering rule, properly understood. The Article develops a new framework for analyzing the boundary between permissible preemption and prohibited commandeering—the state-of-nature benchmark. The state-of-nature benchmark eliminates much of the confusion that has clouded disputes over the legal status of state medical marijuana laws. Just as importantly, the Article demonstrates why these state laws matter in a more practical sense. By legalizing medical use of marijuana under state law, states have removed the most significant barriers inhibiting the practice, including not only state legal sanctions but also the personal, moral, and social disapproval that once discouraged medicinal uses of the drug. As a result, medical use of marijuana has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, as commentators suggest, but contrary to conventional wisdom it is the states, and not the federal government, that have emerged the victors in this struggle. Although the Article focuses on medical marijuana, the framework developed herein could be applied to any issue pitting permissive state laws against harsh federal bans, including abortion, sports gambling, and firearms possession.