Wash U Expert: States should have some power over criminal laws of marijuana​​​​​

Constitutional law expert weighs in on congressional effort to amend controlled substances act

A bill introduced July 28 in the U.S. House of Representatives would amend the Controlled Substances Act — the federal law that criminalizes marijuana — to exempt plants with an extremely low level of THC, the part of marijuana that makes users high.

The bill follows closely on the heels of a call by The New York Times editorial board for the federal government to legalize marijuana. It could mark a turning point of sorts in the campaign for legalization, said Gregory P. Magarian, JD, professor of law at Washington University in St. Louis.


Magarian is an expert on constitutional law and free speech and is interested in the clash between the federal and state governments over the regulation of marijuana.

“Maybe the most important point is that federalization of drug laws is the proverbial train that long ago left the station,” he said. “The federal government in the 1980s and ’90s federalized more and more drug crimes. Now, therefore, the federal government doesn’t have a path of least resistance on marijuana and other drug laws. The federal government has to decide whether to continue to commit federal resources to prosecuting marijuana crimes.”

The New York Times piece makes a good point, Magarian said, about the selective enforcement of drug laws at the federal level.

“If marijuana enforcement just becomes a tacitly lower priority at the federal level, it remains open to a future, hard-line administration to put the hammer back down,” he said. “To put the point another way, if the federal government wants to get out of the business of punishing marijuana crimes, it should say so formally, through legislation, rather than simply propounding an informal hands-off policy that people may not be able to trust going forward.”

Role of the states

“If the federal government decriminalizes or legalizes marijuana possession at the federal level, it could do so in a way that left the states free to criminalize marijuana, or it could do so in a way that stripped the states of that power,” Magarian said. “The relevant constitutional doctrine is called federal preemption. The federal government, where it has power to regulate, always has power to bar the states from regulating.

“Often the federal government doesn’t do this, in what are often called ‘cooperative federalism’ arrangements, such as Medicaid. If the federal government really wanted to federalize all marijuana law, it could most directly do so by enacting a comprehensive set of marijuana regulations — taxing sales, imposing standards for medical marijuana, etc.”

The federal government

“As a predictive matter, I don’t think the federal government will do that with marijuana,” Magarian said. “At a minimum, the feds would be very unlikely to step on core areas of state regulation — schools, traffic, etc. — as they relate to marijuana.

“Beyond that, I think for both political and policy reasons the feds will leave states with substantial power to criminalize marijuana possession and sale. The feds may preempt state regulation in specific policy areas, like insurance coverage rules for medical marijuana.”

A smart approach

“I’m no great advocate of state power, and I don’t mind federalizing various policy areas,” Magarian said. “I see two interconnected reasons for leaving states with some power over the criminal law of marijuana.

“First, criminal law is traditionally an area where states get to effectuate different preferences, and states conventionally have differed a lot over ‘vice’ regulations. Unless we recognize a constitutional right not to be punished for possessing marijuana (which is not something I see happening), states probably should retain this prerogative.

“Second, the federal ‘war on drugs’ has been a notorious policy failure. I’m painting with a broad brush for the sake of brevity, but in a field where federal regulation has demonstrably failed, the case for permitting state regulation becomes stronger.

“Now, that argument may have the matter backwards: Just because the federal government has failed in taking a hard line on marijuana doesn’t mean it would fail in taking a soft line. But I think a lot of people (and states) would see a broadly preemptive permissive federal marijuana regime as a continuation of past federal overreaching.”

Magarian is available for interview through the university’s free ISDN service.