State marijuana legalization and the Necessary and Proper Clause

|The Volokh Conspiracy |

As regular readers probably have learned all too well, one of my current academic projects is revising our understanding of the Necessary and Proper Clause, something I tried to do in two recent papers. For the tireless, I have a third paper coming out soon on the topic, this time on why current doctrine ought to give a little more weight to state implementation of policy, with special reference to the current debates about marijuana federalism.

Here's the abstract:

The new marijuana federalism is here, but is it here to stay? In this Article, I address that question by way of two related points, a practical one and a technical one, and I ultimately argue that state regulation should have a bigger role in fixing the limits of federal constitutional power.

The practical point is that the current regime of state marijuana legalization is unstable, and it is a miracle that it is working as well as it is. Because marijuana remains contraband at the federal level, businesses and lawmakers who invest in responsible legalization at the state level have no guarantee their investments are safe from the whims of federal law enforcement. Moreover, even if the federal drug laws are not actively enforced in those states, the laws create serious problems for banks, lawyers, and others who might otherwise want to work with the in-state marijuana industry.

The technical point is that this instability can be traced to an importantly erroneous footnote in the Supreme Court's decision in Gonzales v. Raich. Footnote 38 claims that state law can never be relevant to the scope of Congress's power under the Commerce Clause or the Necessary and Proper Clause. That conclusion is wrong, is not required by the rest of the Court's enumerated powers jurisprudence, and should be cast aside.

The Necessary and Proper Clause should be interpreted to give states a bigger role in determining when the federal drug laws are constitutional. Congress's power to reach purely in-state conduct is premised on the possibility of interstate spillovers. If a state legalizes and regulates a drug in a way that minimizes the risk of spillovers into the interstate black market, the federal drug laws should be forbidden to apply within that state. This both creates a more stable set of incentives for states to responsibly manage local behavior and provides a more satisfactory formal grounding for the executive nonenforcement policy.

The paper is part of a symposium on Marijuana, Federal Power, and the States, forthcoming in the Case Western Reserve Law Review. I owe special thanks to co-blogger Jonathan Adler for putting together the symposium and for inviting me to it.

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