Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Monday, January 13, 2014

The lingering threat of preemption

Thanks for inviting me! I really appreciate the opportunity to post here. In my first few posts, I’ll be discussing federal preemption of state marijuana reforms, a topic on which I’ve written extensively.

To my mind, federal preemption constitutes a very potent threat to some state marijuana reforms, notwithstanding the Department of Justice’s assurances that it has no plans to challenge state marijuana reforms. While I believe the DOJ, it isn’t the only entity that can challenge state law on preemption grounds, and there is no shortage of persons interested in doing so. Indeed, over the past decade, local officials and private firms have filed dozens of lawsuits asking courts to block state marijuana reforms as preempted.

To be sure, I think most of the suits that have been brought to date lack merit. Many of them have failed to acknowledge that federal supremacy has some limits. Chief among these is a constitutional doctrine called the anti-commandeering rule. In a nutshell, this rule says Congress may not force a state to regulate marijuana or to help the federal government enforce its own brand of marijuana regulations. In other words, states may always adopt a laissez faire approach toward marijuana, regardless of how Congress treats it.

But most states don’t want to simply legalize marijuana, they want to regulate the drug. Think licensing requirements for distributors, labeling requirements for marijuana products, and employment protections for some users. And herein lies the problem. Any state regulation of the private marijuana market can be preempted by Congress. Of course, Congress doesn’t want to preempt all state regulation. After all, many state regulations short of prohibition will still further federal objectives. Requiring vendors to obtain a state license, for example, should help limit access to marijuana, and Congress probably prefers some state controls to none at all.

But there are some types of state regulation that arguably impede federal objectives and are thus vulnerable under classic conflict preemption principles. These include state redistribution of marijuana (per the Cuomo New York plan, as Sam discussed last week) and perhaps even state enforcement of marijuana contracts. I’ll be writing about these issues in greater detail in the coming days and weeks. In the meantime, thanks again for having me!

 

http://lawprofessors.typepad.com/marijuana_law/2014/01/the-lingering-threat-of-preemption.html

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