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62 UCLA L. Rev. 74 (2015)
Cooperative Federalism and Marijuana Regulation

handle is hein.journals/uclalr62 and id is 73 raw text is: Cooperative Federalism and
Marijuana       Regulation
Erwin Chemerinsky, Jolene Forman,
Allen Hopper, and Sam Kamin
ABSTRACT
The struggle over marijuana regulation is one of the most important federalism conflicts
in a generation. The ongoing clash of federal and state marijuana laws forces us to
consider the preemptive power of federal drug laws and the appropriate roles for state
and federal governments in setting drug policy. This conflict also creates debilitating
instability and uncertainty on the ground in those states moving from prohibition to
regulation of marijuana.
While the courts have yet to establish the precise contours of federal preemption doctrine
in this context, we argue that the preemptive reach of the federal Controlled Substances
Act (CSA) is relatively modest. Recognition of this legal reality likely played a significant
role in the recent Department of Justice (DOJ) decision not to challenge the Colorado
and Washington State ballot initiatives legalizing and regulating marijuana for adult
use. Yet even if the federal government honors its commitment to not enforce federal
drug laws against those complying with robust state regulatory regimes, the ancillary
consequences flowing from the continuing federal prohibition remain profound. Banks,
attorneys, insurance companies, potential investors, and others-justifiably concerned
about violating federal law-are reluctant to provide investment capital, legal advice, or
other basic professional services necessary for marijuana businesses to function. Those
using marijuana in compliance with state law still risk losing their jobs, parental rights,
and many government benefits if their marijuana use is discovered.
We suggest an incremental and effective solution that would allow willing states to
experiment with novel regulatory approaches while leaving the federal prohibition intact
for the remaining states: The federal government should adopt a cooperative federalism
approach that allows states meeting specified federal criteria-criteria along lines that
the DOJ has already set forth-to opt out of the CSA provisions relating to marijuana.
State law satisfying these federal guidelines would exclusively govern marijuana activities
within those states opting out of the CSA but nothing would change in those states
content with the CSAs terms. This proposed solution embodies the best of federalism
by empowering state experimentation with marijuana regulation while maintaining a
significant federal role in minimizing the impact of those experiments on states wishing
to proceed under the federal marijuana prohibition.

62 UCLA L. REV. 74 (2015)

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