Oliver Roberts (Skadden, Arps, Slate, Meagher & Flom LLP) has posted The New Federalism Frontier in Marijuana Legalization and Decriminalization (South Carolina Law Review, Vol. 73, No. 319, 2022) on SSRN. Here is the abstract:
Over the past two decades, the movement for marijuana legalization and decriminalization has achieved widespread success on the state level. To date, thirty-six states have legalized marijuana in some form. While once only a budding industry, the cannabis market has grown faster than a weed, with full-fledged medicinal and commercial markets in states nationwide. And now with Democratic control of Congress and the Presidency, federal decriminalization and legalization of marijuana appears more promising than ever. In December 2020, the Democratic-controlled House passed the Marijuana Opportunity Reinvestment and Expungement Act of 2020 (the MORE Act) to decriminalize and legalize marijuana. And most recently in February 2021, Senate Majority Leader Chuck Schumer announced that marijuana reform would be a legislative priority. While marijuana advocates and opponents debate the merits of marijuana use, a novel and pressing constitutional issue will inevitably enter play: depending on its scope and content, federal marijuana legislation may potentially strip states of their power to prohibit and/or criminalize marijuana within their own borders.
Because marijuana has been prohibited at the federal level since 1970, discussions of “marijuana federalism” to date have largely focused on the states’ ability to legalize marijuana against the backdrop of federal prohibition. However, in light of recent state trends and new political dynamics, this Article presents an entirely new federalism issue. With federal marijuana reform legislation potentially on the horizon, this Article anticipates the rise of a new federalism issue regarding whether states can prohibit and criminalize marijuana-related activities against the backdrop of federal legalization and/or decriminalization of marijuana. In this new debate, state laws will face constitutional obstacles in the Supremacy Clause and the Dormant Commerce Clause. First, depending on congressional intent, the federal legislation may (or may not) preempt state marijuana laws. And second, these state laws may (or may not) be struck down for unduly burdening interstate commerce. Any potential uncertainties, however, can be avoided by close congressional attention. Congress undoubtedly has the ability to avoid federal preemption of state laws, and unequivocally maintains the authority to grant the states explicit powers to regulate and criminalize marijuana-related activities within their borders. Therefore, Congress can—and should—explicitly address this new question of marijuana federalism in any forthcoming legislation that decriminalizes and/or legalizes marijuana.
However, the most prominent and politically successful federal marijuana legislation to date—the MORE Act—lacks these vital provisions. Accordingly, the power of the states to regulate and criminalize marijuana will be at the mercy of judicial interpretation, potentially leaving the states powerless in the marijuana regulatory space. To keep regulatory power with the states, this Article argues that if federal marijuana legislation is introduced, Congress must include explicit provisions that avoid preemption of state marijuana laws and grants power to the states to regulate and criminalize marijuana-related activities if states so choose.