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Marijuana Federalism

How do we resolve the cannabis conflict between state legalization and federal prohibition?

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While 33 states have legalized marijuana for medical or recreational use, the federal government recognizes no exceptions to pot prohibition. Marijuana Federalism, an essay collection edited by Case Western Reserve law professor Jonathan Adler, maps some promising pathways through this cannabis conflict.

Duke law professor Ernest Young argues that the combination of limited federal resources and the anti-commandeering doctrine, which implies that Congress cannot compel state officials to enforce federal drug policies, means states can effectively nullify marijuana prohibition in most of its applications. But as University of Alabama law professor Julie Andersen Hill notes, that observation provides little reassurance to banks, which will continue to eschew marijuana money until Congress removes the threat of criminal penalties and potentially ruinous regulatory sanctions.

Hastings College of Law professor Zachary Price thinks the Obama administration's policy of prosecutorial restraint regarding state-legal marijuana activity, while constitutional, set a dangerous precedent for flouting the will of Congress in less appropriate circumstances. Vanderbilt University law professor Robert Mikos proposes a broader solution: revisiting the rules governing federal preemption of state laws, an issue raised by a 2018 Supreme Court decision allowing state legalization of sports betting.

Getting closer to the heart of the matter, University of Chicago law professor William Baude questions the legal basis for the comprehensive national ban on marijuana, which unlike alcohol prohibition was imposed without amending the Constitution. Baude suggests a narrower understanding of Uncle Sam's authority over pot would help restore the proper balance between state and federal power.

 

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12 responses to “Marijuana Federalism

  1. Baude is correct. Next question.

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  2. Still think Trump should issue an Executive Order de-scheduling marijuana, releasing all Federal prisoners held for non-violent marijuana crimes, and expunging all Federal sentences for non-violent marijuana crimes. Leave it up to the states.

    Be interesting to see how Drug Warrior Biden responds to that.

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  3. Overturn Gonzales v. Raich.

    1. No shit. What a garbage decision. Scalia’s reasoning sucked ass.

  4. Here’s a wild and crazy idea; follow the existing federal law.
    Existing federal law restricts schedule one drugs to those without any medical benefit. The devil weed has many documented medical benefits, therefore it is illegal to have it on schedule one.
    Q.E.D.
    The right should love this because it is law and order personified.
    The left should love it because it is racially just.

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  6. The marijuana federalism party is the Constitution Party.

    “The Constitution Party will uphold the right of states and localities to restrict access to drugs and to enforce such restrictions. We support legislation to stop the flow of illegal drugs into the United States from foreign sources….

    “Criminalization of drug abuse at the Federal level of government has not resolved the problems but has complicated and increased the drug problem. In particular, the unconstitutional Federal domestic “War on Drugs” is a never ending financial drain on the honest, law abiding taxpayers. The threat of tyrannical government in the name of the “DRUG WAR” is destroying the liberty of the people, and constitutes a clear and present danger.

    “We call upon Congress to publicly investigate the manner in which all funds and authority granted by Congress to the DEA and other agencies involved in the so-called War on Drugs are used, and to terminate authority and funding of any and all unconstitutional activities.”

    https://www.donblankenship.com/constitution-party/the-issues-we-stand-behind/158-drugs

  7. “How do we resolve the cannabis conflict between state legalization and federal prohibition?”

    The Constitution resolved this over 200 years ago. Congress has no power to ban personal possession of anything. That is up to state governments. Congress only has the power to regulate interstate commerce of pot and other things.

    Once upon a time, Congress knew its limits such as when it passed the 18th Constitutional amendment to give itself the power to ban alcoholic beverages. Nowadays, Congress just bans things by statute including things it does not have the power to ban.

  8. We call upon Congress to publicly investigate the manner in which all funds and authority granted by Congress to the DEA and other agencies involved in the so-called War on Drugs are used, and to terminate authority and funding of any and all unconstitutional activities.
    http://www.concrete-everything.com/

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