November 9, 2012
In 1976 former President Jimmy Carter proclaimed his support for the decriminalization of marijuana during his campaign. The idea has been debated for decades in the United States. The use of medical marijuana with a doctor’s order is permitted in several states, and other states have actually made the leap to decriminalization. Recently, Washington (2012 Wash. Legis. Serv. Init. Meas. 502) and Colorado (2012 Colo. Legis. Serv. Init. Pet. 30) legalized recreational marijuana usage for those 21 years of age or older.
To be clear, marijuana remains illegal under federal law (16 U.S.C.A. 559b). Those who grow or sell it under state law are subject to arrest and prosecution by federal drug enforcement. Because of this, it is possible that state and federal governments will ultimately clash in a courtroom for final resolution. As one might imagine, the issue of legalizing marijuana has both passionate proponents and opponents.
One of the common arguments in favor of legalization is the potential of millions of dollars in taxes on marijuana manufacturing and sales. Additionally, some point to a flawed drug policy in the United States that can be improved by the legalization of marijuana. The rationale is that legalization will divest violent gangs and drug dealers of profits reaped from street sales, thereby increasing public safety.
With many states marshalling in laws permitting the use of marijuana (medical or otherwise), and with national opinion shifting , the federal government may eventually see its stance against marijuana vanish in a haze of smoke.
These new laws raise significant issues of federalism. The following search in secondary sources on WestlawNext yields very interesting results:
adv: TI(federalism) and marijuana
See for example, Jessica Bulman-Pozen, Heather K. Gerken, Uncooperative Federalism, 118 Yale LJ 1256, 1259:
We hope to convince readers that a sensible account of federalism ought to recognize that uncooperative federalism occurs in practice and to acknowledge that there are values associated with the phenomenon. In the process, we offer a new read on two of the most controversial strands of federalism doctrine–commandeering and preemption. While the Supreme Court has condemned commandeering and favored preemption, a strong commitment to the idea of uncooperative federalism would suggest that the Court has it wrong on both counts. Our doctrinal analysis also leads to a counterintuitive conclusion: while proponents of state resistance generally insist that autonomy is necessary for states to challenge the federal government, it may be that forcing states into the role of federal servants ultimately does more to foster state-centered dissent.
If you wish to view additional materials pertaining to this issue, the searches below may be run on WestlawNext:
TE,CA(regulat! medic! “personal use” /5 marijuana) % sentenc! (216)
Content: Statutes & Court Rules
Jurisdiction: All States
sy,di(regulat! medicin! “personal use” /5 marijuana) % sentenc! (71)
Jurisdiction: All States