22 Stan. L. & Pol'y Rev. 633 (2011)
A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana

handle is hein.journals/stanlp22 and id is 637 raw text is: A CRITICAL APPRAISAL OF THE
Robert A. Mikos*
The Obama Administration has embarked upon a much-heralded shift in
federal policy toward medical marijuana. Eschewing the hardball tactics
favored by earlier administrations, Attorney General Eric Holder announced in
October 2009 that the Department of Justice (DOJ) would stop enforcing the
federal marijuana ban against persons who comply with state medical
marijuana laws.
On the surface, the Non-Enforcement Policy (NEP) signals a welcome
reprieve for the more than 400,000 people now using marijuana legally under
state law and the thousands more who supply them. Under the Clinton and
George W. Bush administrations, the DOJ had campaigned vigorously against
medical marijuana programs. For example, the Drug Enforcement
Administration (DEA) raided hundreds of medical marijuana dispensaries and
threatened to derail the careers of physicians who recommended marijuana to
their patients. Under the Obama Administration, it would seem, patients,
physicians, and dispensaries can breathe a lot easier.
What is more, the NEP appears to cede an important policy domain to the
states. Medical marijuana has been one of the most salient and contentious
federalism battlegrounds of the past fifteen years. Federal officials have railed
against the intransigence of the states; state officials have protested
overreaching by the national government; and the Supreme Court has twice
weighed in to settle jurisdictional disputes over the drug. The NEP seemingly
calls a truce in this war, but its impact could extend more broadly. The states'
pioneering efforts regarding medical marijuana have already fueled calls for
* Professor of Law, Vanderbilt University Law School; A.B., Princeton University;
J.D., University of Michigan. I thank Nita Farahany, Brian Fitzpatrick, Steven Hetcher, Alex
Kreit, Suzanna Sherry, Christopher Slobogin, and workshop participants at the University of
Colorado for their helpful comments on earlier drafts. I also thank Brennan Hughes for his
excellent research assistance. Comments are appreciated (robert.mikos@vanderbilt.edu).


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