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.