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The Cannabis Conundrum: The CSA and the Crisis of Federalism

1h 6m

Created on April 20, 2016

Intermediate

Overview

Not since the days of poll taxes, literacy tests, and segregated lunch counters has America confronted a more visible clash between state’s rights and federal power.  Although the U.S. Controlled Substances Act (the CSA) unequivocally prohibits marijuana’s possession, cultivation, and distribution, “reefer madness” spreads. As of 2016, twenty three states now authorize their citizens to use marijuana to treat disease, to assuage pain, or simply to yield pleasure.  

 

Have these “laboratories of democracy” – as Justice Brandies famously described the states— bred a bold and visionary social experiment? Or is legal cannabis little more than a terminal, 21st century exercise in “state rights” condemned to suffer the fate of Jim Crow? Does the supremacy of U.S. law prevent Colorado, Washington, and Oregon, among other states, from legalizing marijuana? Or does the old civil rights’ bugaboo, state sovereignty, actually support a bifurcated regime of overlapping and conflicting laws? 

       

With these questions sparking our inquiry, this course will review the federal preemption doctrine and its corollary, the anti-commandeering principle. Lessons from which we will apply to the CSA. First, we ask whether the CSA and states’ cannabis laws pose an actual conflict. Next, by assuming they do, we examine the significance. Can Congress compel the states to prohibit marijuana, on the one hand? On the other, can it nullify the regulatory scheme twenty-three states have elected instead?  

 

Learning Objectives:

I.     Consider whether and how state-licensed marijuana can endure in the teeth of the Federal Controlled Substances Act (the “CSA”)

II.    Examine the CSA’s preemption clause and its purview

III.   Study the conflict between CSA prohibition and state legalization through the lens of the Supremacy clause, the preemption doctrine, the anti-commandeering principle and the California cases that have addressed the subject

IV.    Clarify the boundary between 

  • permissible preemption—i.e. Congress’s power to preempt a state bans—and impermissible commandeering—i.e. Congress’s impotence to compel the states to enact one; and
  • Congressional statutes that authorizes conduct the states ban and Congressional statute that bans conduct the states permit  

V.     Explain Robert Mikos’ “state-of-nature” touchstone for differentiating between permissible preemption and impermissible commandeering.

VI.    Explore the legal and practical implications of a cannabis regime governed by conflicting and overlapping sovereigns

 

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