Marijuana localism.

Author:Mikos, Robert A.
Position:Reinstating marijuana prohibition - Western Reserve University School of Law Interdisciplinary Conference on Marijuana, Federal Power & the States


INTRODUCTION I. LOCALISM THEORY II. MARIJUANA LOCALISM A. The Case For B. The Case Against 1. Marijuana Smuggling 2. Marijuana Tourism III. THE LESSONS FROM ALCOHOL LOCALISM IV. RECOMMENDATIONS A. What States Could Do B. What States Have Done C. What States Should Do CONCLUSION INTRODUCTION

The states have largely prevailed in their struggle against the federal government, for control over marijuana policy. More than twenty states have already legalized marijuana for some purposes under state law, and the number is sure to grow. (1) Though the federal government has not yet formally repealed its own marijuana prohibition, (2) it has largely ceded control of the issue to the states. (3)

But the states are now facing growing opposition from within their own borders. Citing concerns over marijuana's perceived harms, many local communities in marijuana legalization states are seeking to reinstate marijuana prohibitions at the local level. (4) Communities in at least twelve marijuana legalization states have already passed local bans on marijuana dispensaries. (5) Even in Colorado, arguably the state with the most liberal marijuana policies, more than 150 municipalities have passed ordinances banning the commercial sale of marijuana. (6) And countless other communities that otherwise welcome or at least tolerate the marijuana industry are nonetheless attempting to regulate it, imposing their own idiosyncratic rules concerning the location, size, hours, signage, security, and goods sold and taxes paid by local vendors. (7)

These local ordinances raise one of the most important and unresolved questions surrounding marijuana law reforms: What power, if any, should states give local governments to regulate marijuana? How the states choose to answer this question will not only influence the content and pace of reforms, but could also have a dramatic impact on the overall level of popular satisfaction with marijuana policy. Proponents of localism suggest that local communities can do a better job of tailoring marijuana policies to suit the preferences of local majorities (8)--the same argument that states have employed to wrest control from the national government. (9) In other words, locals are simply saying that what's good for the goose is good for the gosling.

But there is one important difference between localism and federalism: States have far greater influence over localities than the federal government has over the states. The states have a degree of constitutionally guaranteed autonomy from federal interference. This is why they have been able to legalize marijuana, notwithstanding the federal government's strict ban on the drug (10) and claims that state legalization has imposed negative externalities on neighboring states. (11) In other words, the federal government could not stop the states from legalizing marijuana even if it sorely wanted to. (12) In contrast, local governments have no similar constitutional protection against state interference, at least as a matter of federal constitutional law. This means states could conceivably prevent local governments from meddling with state marijuana policy, if they deemed local control normatively undesirable. (13) The only real question then is what should the states do?

Despite the importance and very live nature of the local authority question, there has been surprisingly little attention paid to it. Most marijuana legalization states have simply failed to address local authority when crafting their marijuana laws, including recent reforms. (14) This means the issue is being resolved through costly and lengthy litigation. (15) Indeed, in many states, the issue of local control remains unsettled. (16) And while many scholars have weighed in on the federalism issues surrounding marijuana law reforms (including yours truly), (17) they have all but ignored the important power battles now flaring up within the states. (18)

This Article begins to fill the gap. It aims to provide lawmakers, jurists, scholars, and other interested parties insights into the desirability of enabling local communities to regulate the sale of marijuana. I focus on local power over marijuana sales because it is the most salient localism battleground today. Notably, no state has yet allowed a local government to ban the simple possession of the drug where state law permits such possession. (19) Even local bans on personal cultivation of the drug appear suspect under state law. (20) Nonetheless, this Article could be used to gauge the desirability of local power over these and other issues as well, should the need arise.

The Article approaches its task in three steps. First, it discusses the economic theory of localism, focusing on the primary economic rationale behind localism decisions: the desire to maximize satisfaction with government policy. Under this theory, localism's net impact on preference satisfaction hinges on the relative strength of two competing considerations: (1) the degree to which local communities disagree about how to regulate a given activity; and (2) the degree to which local communities absorb the full costs and benefits of the regulated activity--or, to put it another way, the degree to which people are likely to care about how the activity is being regulated elsewhere.

Second, the Article attempts to gauge the strength of these competing considerations when it comes to regulating marijuana sales. The Article suggests that local communities do indeed disagree about how to regulate marijuana sales, as evidenced by the divergent policies they are now pursuing and the local votes in recent elections. At the same time, however, the Article suggests that local communities do not absorb the full costs and benefits of local marijuana sales. The reason is that residents of one community can easily purchase marijuana in other communities and consume it there or back home. Easy access to marijuana in neighboring communities threatens to undermine the efficacy of many local marijuana regulations and thus the ability of local governments to satisfy the policy preferences of large constituencies.

Third, the Article develops a case study of local alcohol control and mines this case study for lessons about local marijuana control. It is, of course, far too early to gauge the impact of local marijuana regulations. But we do have more than one century worth of experience with local alcohol regulations. I argue that this experience holds some valuable lessons for debates over marijuana localism. In particular, I suggest our experience with local alcohol control should temper enthusiasm for giving local government similar control over marijuana. The research on local alcohol control suggests that local alcohol regulations often have effects outside of the communities that adopt them. (21) For example, one community's decision to go "wet" could thwart a neighboring dry community's efforts to curb alcohol consumption and the harms that go along with it. Likewise, one community's decision to go "dry" might simply shift more alcohol consumption and its attendant harms into a neighboring wet community. The sobering experience with local alcohol control suggests that the state or even the national government might be better suited to control alcohol and, by extension, perhaps marijuana as well.

Importantly, the Article remains deliberately neutral regarding whether marijuana distribution should be legal or illegal. It focuses instead on who should decide. I contend that the answer to that question ought to be the same regardless of its impact on the reach and pace of legalization. The state should allocate policymaking authority to whichever level of government is likely to please the largest number of people. To be sure, presently, localism would appear to favor one side--it enables prohibitionists to preserve islands of prohibition in states where the tide has clearly turned against them. But it is important to recognize that local power could just as easily be used to legalize as to prohibit marijuana. Indeed, citing frustration with the pace of state-level reforms, local communities in several states are now attempting to legalize marijuana, notwithstanding state prohibitions on the drug. (22) Localism thus arguably holds some appeal for both sides in marijuana policy debates. For this reason, if no other, it might be possible for decisionmakers to allocate authority between state and local governments without necessarily being influenced by expectations of how that authority will be exercised at the present moment.

The Article could also generate important insights for marijuana federalism. Since states too have porous borders, marijuana smuggling and marijuana tourism threaten to undermine satisfaction with their policies as well. Indeed, Nebraska and Oklahoma have filed a lawsuit against Colorado claiming the Rocky Mountain State has imposed various costs upon its neighbors:

The diversion of marijuana from Colorado contradicts the clear Congressional intent, frustrates the federal interest in eliminating commercial transactions in the interstate controlled-substances market, and is particularly burdensome for neighboring states like Plaintiff States where law enforcement agencies and the citizens have endured the substantial expansion of Colorado marijuana. (23) For reasons I've explained elsewhere, marijuana federalism may pose more of an academic question for now (24)--but it could resurface if support for marijuana legalization continues to grow. (25)

In addition to contributing to the debate over marijuana law and policy, this Article also adds to the body of localism scholarship. Following in the footsteps of recent works analyzing local control of domains as diverse as firearms and hydraulic fracturing, (26) this Article provides a case study to apply and refine the more abstract principles of localism theory. Perhaps one of the most important...

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