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Cooperative Federalism and Marijuana Regulation

A new paper by Erwin Chemerinsky, Jolene Forman, Allen Hopper, and Sam Kamin proposes a new policy to govern diverse marijuana regulations within the U.S. federal system.  The paper argues that

the DOJ could not simply shut down all state marijuana legalization efforts using the federal government’s preemption power under the Supremacy Clause.

The authors propose instead

The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria – criteria along the lines that the DOJ has already set forth – to opt out of the federal Controlled Substances Act (“CSA”) provisions relating to marijuana. In opt-out states certified by the Attorney General, state law would exclusively govern marijuana-related activities and the CSA marijuana provisions would cease to apply. Federal agencies could continue to cooperate with opt-out states and their local governments to jointly enforce marijuana laws, but state law rather than the CSA would control within those states’ borders. Equally important, nothing would change in those states content with the status quo under the CSA. This proposed approach embodies the best characteristics of federalism by allowing some states to experiment while maintaining a significant federal role to minimize the impact of those experiments on other states.