A Different Approach to State-Federal Marijuana Enforcement

In Colorado and Washington now and presumably in other states in the next few years, marijuana legalization exists in strange world of federal-state confusion. Producing, selling and using the drug is legal in states that opt for legalization, but remains illegal at the federal level. This has implications for infrastructure (e.g., whether banks will allow marijuana dispensaries to open accounts) and for taxation (e.g., whether the IRS will allow marijuana producers to deduct expenses). It also has implications for the future, as the next president and attorney general could decide to ramp up federal enforcement at a moment’s notice.

One commonly proposed solution to all these challenges is for the federal government to proactively accommodate legalizing states. Mark Kleiman has argued that the federal government should issue revocable waivers of the Controlled Substances Act (CSA) to states that want to conduct legalization experiments.

A new paper by Erwin Chemerinsky, Jolene Forman, Allen Hopper and Sam Kamin argues that a different approach to cooperative federalism is possible and has been used with other laws:

We propose an amendment to the CSA that would allow states and the federal government to cooperatively enforce and regulate marijuana. As with the Clean Air Act, Clean Water Act, and Affordable Care Act, state law would govern in states that have legalized recreational or medical marijuana, and federal law would supplement state law only when states defer to federal law or fail to satisfy federal requirements. Just as the Environmental Protection Agency works with states to enforce air and water pollution laws, federal agencies could continue to cooperate with opt-­‐out states and local governments to enforce marijuana laws. However, state laws and regulations would control within those states’ borders, rather than the CSA.

As a non-lawyer, I don’t have the chops to evaluate their legal argument, but if you do or just want to learn more about another proposal to resolve the current federal-state conundrum regarding marijuana, you can download the full text of the paper for free here.

Author: Keith Humphreys

Keith Humphreys is a Professor of Psychiatry at Stanford University. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans and drugs. He is the author or co-author of numerous books and scholarly articles, and has written for the New York Times, Wall Street Journal, Washington Post, The Guardian (UK), the San Francisco Chronicle and other media outlets. When he is not in the San Francisco Bay Area, he is usually in London, where he is an ad hoc policy adviser to the national and city government, an honorary professor of psychiatry at Kings College, a senior editorial adviser to the journal Addiction, and a member of The Athenaeum. When he is not in the San Francisco Bay Area or London, he is usually in Washington D.C., where he serves as a frequent science and policy advisor to federal agencies, and where he has served previously as an appointee to a White House commission and several Secretarial task forces. From July 2009-2010, he served as Senior Policy Advisor at the White House Office of National Drug Control Policy. When he is not in the San Francisco Bay Area or London or Washington D.C., he is usually in the Middle East, where since 2004 he has volunteered in the international humanitarian effort to rebuild Iraq’s mental health care system. This work has taken him to Turkey, Egypt, Iraq, Jordan and Lebanon to teach and consult with Iraqi health professionals and policy makers.