Federalism and State Marijuana Legislation

INTRODUCTION An increasing number of states have passed legislation legalizing medical and recreational marijuana. This Note provides a survey of the language utilized by these states in their legislation and legislative materials, searching for and highlighting those purposes and intentions of the states, which implicate, explicitly or implicitly, federalism. Through this survey of mostly primary source materials, various trends and similarities among the materials will be apparent, and this Note will provide a useful resource for those trying to understand why the states may have enacted these laws. The Note proceeds in four Parts. Part I provides information on the current legal landscape surrounding marijuana and its regulation as a controlled substance, briefly exploring the federal position on marijuana to provide necessary context for the actions of the states. Part II explores the state legislation and materials related to medical marijuana legalization, examining and surveying the primary source material from many states. Part III explores state legislation and materials related to recreational marijuana legislation in a similar way. Part IV takes a brief glance at a historical issue, which presented a conflict between state and federal law, and provides tentative suggestions for why marijuana legalization might be unique. Throughout, this Note puts forward propositions regarding why states may have included particular language, also noting when explicit and implicit federalism arguments could be at work. I. CURRENT LEGAL LANDSCAPE A. Controlled Substances Act The Controlled Substances Act (CSA) (1) was enacted in 1970 by Congress as part of the Comprehensive Drug Abuse Prevention and Control Act. (2) In the CSA, Congress declared that while many "drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people," it was nonetheless true that "[t]he illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." (3) To further this purpose, the CSA created a classification system comprised of five "schedules," designated I, II, III, IV, and V. (4) Schedule I substances are those considered to have no accepted medical use and high potential for abuse. (5) Schedules II through V have increasing levels of accepted medical use and decreasing potential for abuse. (6) The Attorney General is charged with applying the provisions of the CSA to the controlled substances and is also able to add or alter the scheduling of any controlled substance. (7) For the purposes of this Note, what is most relevant is that marijuana was placed in Schedule I, (8) and since that time has been considered by the federal government to have no accepted medical uses, a high potential for abuse, and a lack of accepted safety for use under medical supervision. B. State Action Beginning with California in 1996, (9) numerous states have passed their own measures legalizing the medical use of marijuana, and recently recreational use as well. Currently, twenty-four states and the District of Columbia have laws permitting the medical use of marijuana, (10) and Washington, (11) Colorado, (12) Alaska, (13) Oregon, (14) and the District of Columbia (15) passed laws legalizing the recreational use of marijuana. The states have offered various reasons for the passage of these laws, and federalism has explicitly and implicitly been among them. While the Supreme Court in recent years has discussed the importance of federalism in numerous cases, in 2005 Gonzales v. Raich (16) dealt with Congress's ability to prohibit the cultivation, possession, or use of medical marijuana pursuant to the Commerce Clause as part of the regulatory scheme of the CSA. …