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?
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
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
Matthew S. Schweber is a writer and civil litigator, specializing in family law, cannabis regulation, and intellectual property. In addition, Matt acts as a legal consultant to hedge funds and venture capital firms investing in medical marijuana enterprises; advises companies providing treatment and ancillary services to medical marijuana patients; and is devising a website, mjlawreports.com, which compiles cannabis statutes, ordinances, and case law and which analyses related legal developments.
Matthew has published articles on American culture, literature, and law in Dissent, CrossCurrents, and Salon; has created an introductory college survey course in American Studies called “The American Idea/The Idea of America”; and has lectured on the constitutional questions posed by cannabis’ bifurcated legal scheme.
He also has served as co-chair of the New York Bar Association’s Municipal Cannabis Subcommittee; has participated in panel discussion on cannabis and federalism; and he belongs to the National Cannabis Bar Association.
Interesting and informative
Fantastic presentation. Incredibly knowledgeable and insightful discussion of history and law.
Gives a good review of a complex subject. Cleared up some misunderstandings that I had about preemption.
Mr Schweber is one of the best I have watched on Lawline. He is a very bright and articulate Attorney. well done
Thanks a bunch!
Excellent presentation thank you
Very organized approach explaining a difficult subject, I found it very interesting.
Very thought provoking. Great!
Thorough explanation of relevant issues
Lays out doctrines very well.
Good, detailed discussion!
a very well-researched and informative CLE with good historical context. thanks so mcuh
One of the the best CLEs I've ever taken. Really covered a lot during the hour. Lucid and very interesting; really loved the Nixon quote. Please do more CLEs!
Puts issue into broader context
Unlimited CLE Subscription gives you access to take almost any course from our catalog and earn as much CLE credit as you need.