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11 FIU L. Rev. 349 (2015-2016)
State Legalization of Marijuana as a "Diagonal Federalism" Problem

handle is hein.journals/fiulawr11 and id is 361 raw text is: State Legalization of Marijuana as a Diagonal Federalism Problem Brannon P. Denning When I hear the term vertical separation of powers, I think primarily of how the Constitution allocates power within our federal system, as opposed to horizontal separation of powers, which allocates power among the branches of the federal government. But federalism itself has vertical and horizontal dimensions as well. Vertical federalism concerns the allocation of power between the national government and those of the states., Horizontal federalism, by contrast, concerns the states' relationships with one another.2 The Constitution and constitutional law address both aspects. Article 1, for example, enumerates powers that are given to Congress;3 while, say, Article 4 IV addresses interstate comity in various ways. But some issues implicate both aspects of federalism. This essay will discuss one: the state-level push to decriminalize the use of marijuana for medical and recreational purposes. I suggest that it ought to be regarded as a diagonal federalism problem calling for multi-dimensional solutions. What I am calling diagonal federalism is simply my too-clever-by-half term for an issue-like legalization of marijuana-that implicates federalism's vertical and horizontal axes. In this regard, marijuana occupies a space not unlike that of alcohol in the late nineteenth and early twentieth Associate Dean and Professor of Law, Cumberland School of Law, Sarnford University. This is a revised and lightly footnoted version of remarks made at the Separation of Powers Symposium at Florida International University College of Law on March 11,2016. It draws on two previously published articles. See Brannon P. Denning, Vertical Federalism, Horizontal Federalism, and Legal Obstacles to State Marijuana Legalization Efforts, 65 CASE W. RES. L. REV. 567 (2015); Brannon P. Denning, One Take over the (State) Line: Constitutional Limits on Pot Tourism Restrictions, 66 FLA. L. REv. 2279 (2014). Thanks to Professor Elizabeth Price Foley for the kind invitation to participate, and to the staff of the FlU Law Review for their gracious hospitality and skill in organizing the symposium. I Allan Erbsen defines it as how power is or should be allocated between the federal and state tiers of government, and how to prevent the federal and state governments from encroaching on each other's prerogatives. Allan Erbsen, Horizontal Federalism, 93 MINN. L. REV. 493, 502 (2008). 2 See generally id; Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 MICH. L. REV. 57 (2014). 3 U.S. CONST. art. I, § 8, cls. 1-18. 4 U.S. CONST. art. IV; see generally Gillian E. Metzger, Congress, Article [V. and Interstate Relations, 120 HARV. L. REV. 1468 (2007). 5 Hari Osofsky uses the same term, but gives it much more sophisticated and theoretically rich treatment. See Hari Osofsky, Diagonal Federalism and Climate Change Implications for the Obama Administration, 62 ALA. L. REV. 237 (2011).

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