The Volokh Conspiracy

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As More States Legalize Marijuana, the Need for Marijuana Federalism Grows

If states are to have different marijuana laws and policies, federal reform is necessary.


Connecticut Governor Ned Lamont signed a bill today legalizing marijuana within the state. Effective July 1, marijuana possession is no longer a violation of state law, and retail sales or marijuana could begin next year.

Connecticut is the fourth state to legalize marijuana in 2021, and the 18th state to have done so overall (as has the District of Columbia). Marijuana possession for medicinal purposes is legal in an additional 18 states, and several other states have decriminalized marijuana possession in one form or another.

The rate at which state marijuana laws have changed is simply remarkable. Less than 30 years ago marijuana was illegal for all purposes in every state. The first state did not legalize marijuana for recreational purposes until 2014. And now, a majority of Americans live in states where marijuana possession and use is allowed  . . . but (and here's the catch) marijuana remains illegal under federal law.

While states have moved rapidly to change their marijuana laws in line with changes in public opinion, the federal government has stood pat. This means that marijuana remains illegal to sell or possess. And while the risks of federal prosecution for marijuana offenses remains low, the fact of marijuana's criminal status under federal law has broad implications. Marijuana's status effects banking regulation and gun purchase background checks. It can create sticky situations for lawyers advising marijuana-related businesses and marijuana production can serve as a predicate offense for civil RICO.

While marijuana legalization is popular in much of the country, it is not popular everywhere. Fortunately, our constitutional structure provides a way to allow states to adopt those policies that align with the preferences of state residents without federal interference while simultaneously empowering the federal government to help protect those states that wish to keep marijuana illegal from spillovers from their neighbors: Federalism. But this requires more than the federal government leaving current laws in place. It requires marijuana federalism (not coincidentally, the subject of my recent book on the subject).

The way to facilitate marijuana federalism is for the federal government to focus on interstate drug trafficking while leaving routine drug law enforcement to the states. This is not a novel idea. It is precisely what was done when alcohol prohibition was ended by the 21st Amendment. Whether and how it is legal to produce and sell alcohol is a function of state law. Federal law, however, provides that it is a federal offense to transport or  distribute alcohol in violation of state law. In this way, the federal government facilitates and enhances the ability of each state to adopt its own alcohol policies. There is no reason the same could not be done with marijuana. Indeed, legislation has been proposed to this effect.

Marijuana federalism would enable each state to experiment with marijuana policy reforms. In this way, states could learn from one another about the relative costs and benefits of different reforms, and how making marijuana more or less available affects crime, education, and other societal concerns. Early returns from Colorado and Washington suggest that legalizing marijuana has had less of an effect—both positive and negative—than many supposed. As more states legalize, and adopt different types of marijuana laws and regulations, we will learn more about the positives and negatives ot ending this part of the war on drugs.

In the case of alcohol, every state eventually chose to legalize alcohol, though the variation in state laws remains. This might be the end result of marijuana federalism, but it might not. What we can be sure of, however, is that state-level reforms would be informed by the experiences of other states, and we would avoid the potential downsides of a one-size-fits-all marijuana policy becoming one-size-fits nobody. It is clear that most Americans think that marijuana prohibition is a mistake, but it is not clear what types of marijuana laws would be ideal, or even whether the laws that are best for California or New York make the most sense for Nebraska or Ohio.

This is the case we try to make in my Brookings Press book, Marijuana Federalism: Uncle Sam and Mary Jane (also available from Amazon).  My introduction is available here. Other chapters in the book address the legal and constitutional questions, the effect on banking regulation and lawyers' professional responsibility, changes in public opinion and the practical consequences of legalization in those states that legalized first, among other things.  It also explains why the status quo—state legalization, regulation and often encouragement of a something criminalized under federal law—is neither stable nor desirable.