The Federal Response to State Marijuana Legalization: Room for Compromise?

Ever since Californians voted to legalize medical marijuana in 1996, state and federal drug laws have been on something of a collision course. In the years since, the United States Supreme Court has decided two medical marijuana cases affirming federal authority to enforce prohibition laws against patients and providers acting in compliance with state laws. Though federal enforcement efforts have impacted the lives of those unlucky enough to be targeted by federal prosecutors, they have not succeeded in blocking the adoption and implementation of state medical marijuana laws. Including California, medical marijuana is now legal in eighteen states and the District of Columbia. In states that allow retail medical marijuana establishments, many continue to operate openly. In November 2012, this conflict took on a new dimension with passage of ballot measures legalizing marijuana for recreational use in Colorado and Washington. Since that time there been have been various proposals for how the federal government should respond to state marijuana legalization laws. Prohibitionists have argued in favor of trying to block the laws, either by suing on a preemption theory or aggressively prosecuting anyone who obtains a state license to produce or sell marijuana. Others would like to see the federal government let Washington and Colorado implement the new laws with little or no interference. Colorado Representative Jared Polis, for example, has introduced the Ending Federal Marijuana Prohibition Act, which would “de-federalize” marijuana policy by removing the drug from the Controlled Substances Act. Until there is a change in federal law, some argue that the Obama administration should use its enforcement discretion to formally or informally allow Colorado and Washington to implement their laws without interference. These proposals have tended to frame the federal government’s options in all-or-nothing terms. Either the federal government tries to block the laws or it lets them go forward. But the relationship between state and federal laws is not so constrained. This Article articulates another option available to the federal government, using marijuana policy in the Netherlands as a guide. Congress could amend federal drug laws to permit retail sales of marijuana while continuing to prohibit its commercial manufacture and wholesale distribution. To be clear at the outset, I do not argue that this proposal is preferable to other alternatives. An approach like this would address some of the chief concerns raised by legalization opponents while still giving states like Colorado and Washington a great deal of flexibility and autonomy. It may therefore represent a compromise position in the debate over the federal response to state legalization laws. But there would be costs. Retaining a prohibition on manufacture would mean leaving a large black market in the marijuana trade, for example. And it would not eliminate the conflict between federal law and state laws entirely, since both Colorado and Washington permit commercial manufacture and wholesale distribution. For these reasons, among others, I remain personally inclined toward the resolution offered by Representative Polis. Nevertheless, I put this idea forward as an alternative to existing proposals in the hope that it will contribute to a more robust discussion about the interaction between state and federal drug laws.