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On the Limits of Federal Supremacy When States Relax (or Abandon) Marijuana Bans, Cato Policy Analysis No. 714

On the Limits of Federal Supremacy When States Relax (or Abandon) Marijuana Bans, Cato Policy Analysis No. 714

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Published by Cato Institute
The American Constitution divides governmental power between the federal government and several state governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.

First, there must be a valid constitutional basis for the federal policy in question. The powers of the federal government are limited and enumerated, and the president and Congress must always respect the boundary lines that the Constitution created.

Second, even in the areas where federal authorities may enact law, they may not use the states as instruments of federal governance. This anticommandeering limitation upon federal power is often overlooked, but the Supreme Court will enforce that principle in appropriate cases.

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states' prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been—and cannot be—preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.



Although I focus on medical marijuana, the legal analysis applies to any issue pitting permissive state laws against restrictive federal regulations. Recent referenda in Colorado and Washington that legalize the recreational use of marijuana for adults will likely prompt federal officials to respond by touting the supremacy of the federal ban and challenging the constitutionality of state efforts at legalization. Such state reforms should carry the day in the event of such a legal challenge.
The American Constitution divides governmental power between the federal government and several state governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.

First, there must be a valid constitutional basis for the federal policy in question. The powers of the federal government are limited and enumerated, and the president and Congress must always respect the boundary lines that the Constitution created.

Second, even in the areas where federal authorities may enact law, they may not use the states as instruments of federal governance. This anticommandeering limitation upon federal power is often overlooked, but the Supreme Court will enforce that principle in appropriate cases.

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states' prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been—and cannot be—preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.



Although I focus on medical marijuana, the legal analysis applies to any issue pitting permissive state laws against restrictive federal regulations. Recent referenda in Colorado and Washington that legalize the recreational use of marijuana for adults will likely prompt federal officials to respond by touting the supremacy of the federal ban and challenging the constitutionality of state efforts at legalization. Such state reforms should carry the day in the event of such a legal challenge.

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Published by: Cato Institute on Dec 10, 2012
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Executive Summary 
The American Constitution divides govern-mental power between the federal governmentand several state governments. In the event of a conflict between federal law and state law, theSupremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies aresubordinate to federal policies. There are, how-ever, important limitations to the doctrine of federal supremacy.First, there must be a valid constitutional ba-sis for the federal policy in question. The powersof the federal government are limited and enu-merated, and the president and Congress mustalways respect the boundary lines that the Con-stitution created.Second, even in the areas where federal author-ities may enact law, they may not use the statesas instruments of federal governance. This anti-commandeering limitation upon federal poweris often overlooked, but the Supreme Court willenforce that principle in appropriate cases.Using medical marijuana as a case study, Iexamine how the anti-commandeering principleprotects the states’ prerogative to legalize activ-ity that Congress bans. The federal governmenthas banned marijuana outright, and for yearsfederal officials have lobbied against local effortsto legalize medical use of the drug. However, anever-growing number of states have adopted le-galization measures. I explain why these statelaws, and most related regulations, have notbeen—and cannot be—preempted by Congress. Ialso develop a new framework for analyzing theboundary between the proper exercise of federalsupremacy and prohibited commandeering. Although I focus on medical marijuana,the legal analysis applies to any issue pittingpermissive state laws against restrictive federalregulations. Recent referenda in Colorado andWashington that legalize the recreational use of marijuana for adults will likely prompt federalofficials to respond by touting the supremacy of the federal ban and challenging the consti-tutionality of state efforts at legalization. Suchstate reforms should carry the day in the eventof such a legal challenge.
On the Limits of Federal Supremacy
When States Relax (or Abandon) Marijuana Bans 
by Robert A. Mikos
No. 714December 12, 2012
 Robert A. Mikos is professor of law and director of the Program in Law and Government at Vanderbilt University Law School. This article is a revised and updated version of an earlier article published in the
 Vanderbilt Law Review 
.
 
2
Contrary toconventional wisdom, statelaws legalizingconduct banned by Congressremain in force.
Introduction 
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.
1
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.
2
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.
3
In fact, the Court suggestedthat Congress’s power to regulate, and henceto proscribe, medical marijuana (among oth-er things) was almost unlimited.
4
The deci-sion caused some commentators to declarethat the war over medical marijuana wasover, and that the states had clearly lost.
5
Aslong as Congress wanted to eradicate mari- juana, the states seemingly could do nothingto stop it.But
 Raich
did not stop (or even slow) statelegalization campaigns. At the time
 Raich
 was decided, when Congress’s authority wasstill (somewhat) doubtful, 10 states had le-galized medical marijuana.
6
Since that time,however, 8 more states (and the District of Columbia) have passed legislation legaliz-ing the use of medical marijuana,
7
and sev-eral more states may soon join the fray.
8
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.
9
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
 
3
More battleswill be fought,but they won’t change thereality that thestates—and not the federal government—have already won the warover medical marijuana.
 vigorously: although it commands a $2 tril-lion dollar (plus) budget, the federal govern-ment is only a two-bit player when it comesto marijuana enforcement. Only 1 percentof the roughly 800,000 marijuana cases gen-erated every year are handled by federal au-thorities.
10
The states, by virtueof their great-er law enforcement resources (among otherthings), hold the upper hand. The federalban may be strict—and its penalties severe—but without the wholehearted cooperationof state law enforcement authorities, its im-pact on private behavior will remain limited.Most medical marijuana users and supplierscan feel confident they will never be caughtby the federal government.
11
Even more interesting, an analysis of the medical marijuana conflict reveals thatstates also have comparatively strong sway over the private (non-legal) forces thatshape our actions, such as our personal be-liefs about behavior and our social norms.Simply by allowing their residents to usemarijuana for medical purposes, the stateshave arguably fostered more tolerant atti-tudes toward the practice, making it seemmore compassionate, less dangerous, andless wicked, thereby removing or softeningthe personal and societal reproach that oncesuppressed medical use of the drug. Theexpressive power of permissive state legisla-tion—largely ignored by the academy—can-not easily be undone or countered by Con-gress. As a result, the states may possess evenmore de facto power vis-à-vis Congress thanis commonly perceived.In this paper I will provide a definitivestudy of one of the most important federal-ism disputes in a generation.
12
It shows thatstates have wielded far more power and in-fluence over medical marijuana than previ-ously recognized. The states have not only kept the patient breathing, so to speak, in an-ticipation of a day when federal policy mightchange; they have, for all practical purposes,already made medical marijuana de factolegal within their jurisdictions.To be sure,more battles will be fought, but they won’tchange the reality that the states—and notthe federal government—have already wonthe war over medical marijuana.More important, however, by sheddingnew light on the struggle over medical mari- juana, this paper also has much broaderrelevance to our understandings of federal-ism and state resistance to federal authority. Although it focuses on medical marijuana,the insights generated here could be appliedacross a wide range of issues pitting restric-tive federal legislation against more permis-sive state laws. Over the past decade, stateshave legalized a variety of controversial prac-tices that Congress has sought to proscribeor restrict. For example, states now recognizesame-sex marriages, legalize certain abortionprocedures, permit sports gambling, and al-low possession of firearms that Congressproscribes (or has sought to curtail).
13
Ref-erenda in Colorado and Washington now al-low even more federally proscribed activity,namely, the recreational use of marijuana.
14
  As the case study of medical marijuana dem-onstrates, states (generally) possess legalauthority to enact permissive legislationgoverning such issues, in spite of contrary congressional policy: states are merely re-storing the state of nature. And as with medi-cal marijuana, the ultimate outcome on suchissues may hinge more on Congress’s capac-ity to enforce its own laws and its ability tomanage the non-legal forces that shape ourbehavior than on the Supreme Court’s proc-lamations demarcating Congress’s substan-tive powers vis-à-vis the states. I highlightthe need for courts, commentators, and law-makers to distinguish between federal lawsauthorizing conduct banned by the states(under which state power is significantly constrained), and federal laws banning con-duct authorized by the states (under whichstates wield considerably more power).
Marijuana Laws
In order to lay the necessary founda-tion for the legal analysis, I will begin witha discussion of state and federal marijuana 

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