On the Limits of Supremacy: Medical Marijuana and the States'
Overlooked Power to Legalize Federal Crime

Robert A. Mikos Vanderbilt Law School
March 9, 2009

Vanderbilt Public Law Research Paper No. 09-05 Vanderbilt Law Review,
Forthcoming

Abstract: Using the conflict over medical marijuana as a timely case
study, this Article explores the overlooked and underappreciated
power of states to legalize conduct Congress bans. Though Congress
has banned marijuana outright, and though that ban has survived
constitutional scrutiny, state laws legalizing medical use of
marijuana constitute the de facto governing law in thirteen states.
This Article argues that these state laws and (most) related
regulations have not been, and, more interestingly, cannot be
preempted by Congress, given constraints imposed on Congress's
preemption power by the anti-commandeering rule, properly understood.
Just as importantly, these state laws matter, in a practical sense;
by legalizing medical use of marijuana under state law, states have
removed the most significant barriers inhibiting the practice,
including not only state legal sanctions, but also the personal,
moral, and social disapproval that once discouraged medicinal uses of
the drug. As a result, medical use of marijuana has survived and
indeed, thrived in the shadow of the federal ban. The war over
medical marijuana may be largely over, as commentators suggest, but
contrary to conventional wisdom, it is the states, and not the
federal government, that have emerged the victors in this struggle.
Although the Article focuses on medical marijuana, the framework
developed herein could be applied to conflicts pitting permissive
state laws against harsh federal bans across a wide range of issues,
including certain abortion procedures, possession of various types of
firearms, and many other activities.

Download the entire 63 page article as a .pdf at by going to
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356093  and
clicking the link at the top of the page.

Richard

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