Reflexive Federalism.

AuthorLarkin, Paul J., Jr.

Marijuana Federalism: Uncle Sam and Mary Jane. Edited by Jonathan H. Adler. Brookings Inst. Press (2020).

State and federal law once clearly and uniformly treated marijuana as contraband. (1) The current legal status of that drug nationwide, however, is anything but clear and uniform. The federal government still outlaws cannabis altogether. (2) Since 1996, however, more than thirty states have decided to permit the regulated sale and use of marijuana for medical and recreational purposes. (3) The result is this: Three decades ago, the marijuana laws were clear to everyone and the same everywhere, but to some people they were misguided. Today, those laws are anything but clear to anyone and differ widely, but to some people they are still misguided--albeit to different people for different reasons.

Professor Jonathan Adler's recent book Marijuana Federalism: Uncle Sam and Mary Jane (4) is a valuable and timely addition to the discussion of the two subjects conjoined in its title. (5) Marijuana Federalism is a collection of essays by numerous scholars who approach from different perspectives--legal, policy, and otherwise--the issue of whether cannabis should be regulated by the federal or state governments. (6) The book discusses the legal and practical problems that the incongruity between federal and state law causes the public and businesses in the cannabis industry, and it assumes the burden of trying to make sense of the law by encouraging us to rethink it entirely. Its virtue lies, not only in its content (which is excellent), but also in its approach (ditto). Marijuana Federalism focuses on the implications of an unusual late twentieth and early twenty-first century phenomenon: namely, the growth of distinct and antagonistic federal and state approaches to the regulation of the drug botanically known as cannabis but popularly called marijuana.

The issues raised by the intersection of those two subjects, along with the excellent treatment given them by the contributing essayists, are the primary contributions of Marijuana Federalism to contemporary scholarship. After all, the Framers were well aware of (and persuaded by) the potential benefits of a federalist system, (7) cannabis has been around for thousands of years, (8) and the number of studies, books, and articles on marijuana policy or federalism is enormous. (9) What is novel is the recent and unprecedented decision by a majority of states to abandon the approach that they and the federal government had pursued in common for more than eighty years about how to regulate cannabis. How that development happened; what significance it has for federalism, drug policy, and the law; and what step forward is best--these questions raise important public policy issues. Marijuana Federalism brings together an impressive array of scholars to contribute to the debate over these issues.

The importance of having a free and intelligent debate over subjects like cannabis legalization cannot be said or emphasized enough. Too often today we see efforts made--ones that, lamentably, are sometimes successful--to prevent or shut down free discussion of both sides of a disputed issue. The one discussed in Marijuana Federalism deserves--indeed, needs--to be fully aired. For too long now, Congress has refused to address the conflict between federal and state law, preferring instead to hope that "this cup [will] pass from me." (10) I disagree with several of the arguments made by the contributors to Marijuana Federalism, and I believe that the book omits an important part of the federalism debate: namely, whether there are certain scientific or technical subject matters that should be in the hands of the federal government because only it has experts with the education, training, experience, and assets needed to best address a problem of that type. Nonetheless, I applaud the editor's and essayists' willingness to participate in the debate. Like Marijuana Federalism, this Book Review hopes to move that discussion forward.

The essays focus on different aspects of the issue. Rather than address each one seriatim, this Book Review will discuss them in the course of explaining where we are, the problems that we have, the solutions that Marijuana Federalism offers, and a proposal of my own. Accordingly, this Book Review is organized as follows: Part I will summarize the state of the law governing cannabis policy that has resulted from the decisions of a majority of states to go their own way. As Part II explains, the recent but widespread and now entrenched conflict between federal and state approaches to cannabis policy is a problem that only Congress can--and must--resolve. Part III will analyze the solutions that contributors to Marijuana Federalism have offered to rationalize the state of the law. Part IV will discuss an alternative approach that could supplement the ones discussed in the book. (Spoiler alert: Part IV will also explain the significance of the title of this review. (11))


    For most of the twentieth century, the federal government and all fifty states treated marijuana as contraband. (12) Beginning in the 1960s, however, our historic policy came under challenge. More and more college-age students experimented with marijuana and found it to be just as much an enjoyable intoxicant and social lubricant as alcohol was to their parents' generation. (13) Over time, marijuana not only lost its taboo status, but also became a political symbol. On college campuses, openly smoking marijuana, like publicly burning draft cards, came to symbolize a generation rebelling against the Vietnam War, the status quo, and all things square. (14)

    The appropriate treatment of marijuana was more than a subject of late-night dormitory raillery between buzzed collegians. Considerable public controversy arose regarding how to treat the drug. (15) Some maintained that marijuana should remain outlawed because (among other reasons) it was a "gateway" drug--that is, one that progressively leads to the use of even more dangerous ones, such as heroin. Others responded that marijuana should be legalized-that is, altogether removed from the penal code--or at least decriminalized--that is, treated as a minor infraction--on the ground that it was a relatively mild intoxicant and produced far less social harm than alcohol. (16) Respected academics and commentators argued in favor of reconsidering our marijuana policy. (17) Even a commission appointed by President Richard Nixon recommended that the nation reexamine its longstanding treatment of cannabis as a dangerous drug (a recommendation that he immediately rejected). (18) Some states and locales even took a few steps to reduce the seriousness of marijuana crimes, such as treating the possession of small amounts of cannabis as the equivalent of a traffic offense. (19) A policy that the states and federal government had endorsed for decades appeared to have a very uncertain future.

    Federal law, however, endured and remained clear. No one could lawfully import, cultivate, sell, or own marijuana, and no physician could prescribe it to treat any disease. (20) The principal federal law governing marijuana, the Controlled Substances Act of 1970, placed marijuana in the same category of drugs as (for example) heroin, ones considered dangerous, addictive, and unnecessary for treatment. (21) Working separately or in task forces, federal, state, and local vice officers (or, to use the vernacular, "narcs") investigated cannabis offenses. Successful prosecutions could result in lengthy terms of imprisonment. (22) The federal (and state) courts consistently rejected claims that the parallel treatment of marijuana and heroin was arbitrary and unconstitutional. (23) In short, everyone knew that marijuana distribution and possession was verboten. Indeed, it was precisely that knowledge that made publicly smoking cannabis into an unmistakable symbol of political and social protest by members of the Baby Boomer Generation.

    In 1996, California changed all that. It went from being the first state to prohibit the distribution of cannabis to being the first state to legalize its use. Voters enacted a statewide initiative--Proposition 215, also called the Compassionate Use Act--that became the nation's first state-law based medical marijuana program. (24) The initiative authorized cannabis to be grown, sold, and used to treat various medical problems. (25) Since then, more than thirty other states have followed suit with their own programs. (26) In fact, eleven states (including California) and the District of Columbia have also modified their criminal codes to allow cannabis use for purely recreational purposes. (27) Although federal law still prohibits the medical or recreational use of marijuana, more than seventy percent of the states have gone their separate ways. (28)

    Congress has left the substance of federal law unchanged since 1996, so cannabis distribution can still land someone in federal prison. There are legal restrictions, however, on what the federal government can do to enforce federal law. Since 2014, Congress has regularly passed appropriations bills containing a rider prohibiting the U.S. Department of Justice from halting state efforts to implement medical marijuana programs. (29) The riders clearly do not prohibit all federal enforcement of the CSA's provisions outlawing marijuana distribution. Rather, they forbid the expenditure of appropriated funds only to "prevent" states from "implementing" state medical marijuana programs, (30) and, since violation of the riders is a felony, the courts must read their terms strictly. (31) Nonetheless, whether to avoid breaking the law or for other (largely practical) reasons, the Justice Department officials have not aggressively enforced the CSA provisions prohibiting marijuana distribution since the riders went into effect. (32) The result is that CSA's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT