On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute the de facto governing law in thirteen states. This Article argues that these state laws and most related regulations have not been and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. The Article develops a new framework for analyzing the boundary between permissible preemption and prohibited commandeering-the state-of -nature benchmark. The state-of-nature benchmark eliminates much of the confusion that has clouded disputes over the legal status of state medical marijuana laws. Just as importantly, the Article demonstrates why these state laws matter in a more practical sense. By legalizing medical use of marijuana under state law, states have removed the most significant barriers inhibiting the practice, including not only state legal sanctions but also the personal, moral, and social disapproval that once discouraged medicinal uses of the drug. As a result, medical use of marijuana has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, as commentators suggest, but contrary to conventional wisdom it is the states, and not the federal government, that have emerged the victors in this struggle. Although the Article focuses on medical marijuana, the framework developed herein could be applied to any issue pitting permissive state laws against harsh federal bans, including abortion, sports gambling, and firearms possession. I. Introduction It is taken for granted in federalism discourse that if Congress possesses the authority to regulate an activity, its laws reign supreme and trump conflicting state regulations on the same subject. When Congress legalizes a private activity that has been banned by the states, the application of the Supremacy Clause is relatively straightforward: barring contrary congressional intent, such state laws are unenforceable and, hence, largely immaterial in the sense they do not affect private decisions regarding whether to engage in the activity.1 When Congress bans some activity that has been legalized2 by the states, however, both the legal status and practical import of state law are far less obvious. Contrary to conventional wisdom, state laws legalizing conduct banned by Congress remain in force and, in many instances, may even constitute the de facto governing law of the land. The survival and success of these state laws are the result of previously overlooked constraints on Congress's preemption authority under the Supremacy Clause as well as practical constraints on its enforcement power. Using medical marijuana as a case study, this Article closely examines the states' underappreciated power to legalize activity that Congress bans. Congress has banned marijuana outright, recognizing no permissible medical use for the drug. Violation of the ban carries a variety of modest-to-severe sanctions, both criminal and civil. In Gonzales v. Raich,3 the Supreme Court affirmed Congress's power to enact the ban. In fact, it suggested that Congress's power to regulate, and hence to proscribe, medical marijuana (among other things) was almost unlimited.4 The decision caused some commentators to declare that the war over medical marijuana was over, and that the states had clearly lost.5 As long as Congress wanted to eradicate marijuana, the states seemingly could do nothing to stop it. But Raich did not stop (or even slow) state legalization campaigns. At the time Raich was decided, when Congress's authority was still (somewhat) doubtful, ten states had legalized medical marijuana. …