Contrary toconventional wisdom, statelaws legalizingconduct banned by Congressremain in force.
It is taken for granted in federalism dis-course that if Congress has the authority toregulate an activity, its laws reign supremeand trump conflicting state regulations onthe same subject. When Congress legalizesa private activity that has been banned by the states, the application of the Supremacy Clause is relatively straightforward: barringcontrary congressional intent, such statelaws are unenforceable and, hence, largely immaterial in the sense they do not affectprivate decisions regarding whether to en-gage in the activity.
When Congress bans some activity thathas been legalized by the states, however,both the legal status and practical import of state law are far less obvious.
Contrary toconventional wisdom, state laws legalizingconduct banned by Congress remain in forceand, in many instances, may even constitutethe de facto governing law of the land. Thesurvival and success of these state laws are theresult of previously overlooked constraintson Congress’s preemption authority underthe Supremacy Clause as well as practicalconstraints on its enforcement power. Usingmedical marijuana as a case study, this paperwill examine the states’ underappreciatedpower to legalize activity that Congress bans.Congress has banned marijuana out-right, recognizing no permissible medicaluse for the drug. Violation of the ban carriesa variety of modest to severe sanctions, bothcriminal and civil. In
Gonzales v. Raich
, the Su-preme Court affirmed Congress’s power toenact the ban.
In fact, the Court suggestedthat Congress’s power to regulate, and henceto proscribe, medical marijuana (among oth-er things) was almost unlimited.
The deci-sion caused some commentators to declarethat the war over medical marijuana wasover, and that the states had clearly lost.
Aslong as Congress wanted to eradicate mari- juana, the states seemingly could do nothingto stop it.But
did not stop (or even slow) statelegalization campaigns. At the time
was decided, when Congress’s authority wasstill (somewhat) doubtful, 10 states had le-galized medical marijuana.
Since that time,however, 8 more states (and the District of Columbia) have passed legislation legaliz-ing the use of medical marijuana,
and sev-eral more states may soon join the fray.
Theflurry of legislative activity is puzzling: If thewar on medical marijuana is truly over, why are the states still fighting?The states retain both de jure and defacto power to exempt medical marijuana from criminal sanctions, in spite of Con-gress’s uncompromising ban on the drug.States may continue to legalize marijuana because Congress has not preempted—andmore importantly, may not preempt—statelaws that merely permit (i.e., refuse to pun-ish) private conduct the federal governmentdeems objectionable. To be sure, the objec-tives of the state and federal governmentsclearly conflict: states want some residentsto be able to use marijuana, while Congresswants total abstention. But to say that Con-gress may thereby preempt state inaction(which is what legalization amounts to, af-ter all) would, in effect, permit Congress tocommand the states to take some action—namely, to proscribe medical marijuana. TheCourt’s anti-commandeering rule, however,clearly prohibits Congress from doing this.
In this paper I will develop a new frame-work for analyzing the boundary betweenpermissible preemption and prohibitedcommandeering—the state-of-nature bench-mark. The state-of-nature benchmark elimi-nates much of the confusion that has cloud-ed disputes over state medical marijuana laws. It suggests that as long as states go nofurther—and do not actively assist marijuana users, growers, and so on—they may contin-ue to look the other way when their citizensdefy federal law.On a more practical level, the fact thatstate exemptions remain enforceable is con-sequential; these states laws, in other words,are not merely symbolic gestures. The mainreason is that the federal government lacksthe resources needed to enforce its own ban