Cato Policy Analysis and Forum on State Legalization and Preemption

The libertarian Cato Institute has published a Policy Analysis, "On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans." The author of the brief is Robert A. Mikos, professor of law and director of the Program in Law and Government at Vanderbilt University Law School. Mikos is speaking at a Cato forum tomorrow here in Washington, DC, as is former congressman and DEA chief Asa Hutchinson.

I haven't read Mikos's analysis yet, but the following excerpt gives a hint at what he might say tomorrow:

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states' prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been -- and cannot be -- preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.

 

It's not surprising that a professor friendly to Cato would take a friendly view toward state legalization measures. But Mikos is not the only one. Just today on a phone conference I participated in, a former prosecutor told us that his community sees the courts preempting the state laws as a reach and less than likely, though some DOJ officials want to try for it.

Hutchinson may see things differently, but who knows, maybe we'll be surprised. Perhaps he will have interesting insights to offer on the likely federal response. Hutchinson is a rarity among DEA types in being willing to come out and debate, and he has been known to make reasonable statements about the issue on occasion, though I'm sure we still disagree on most aspects of drug policy.

Should be an interesting talk -- check back at the link for video if you can't come out for it. In the meanwhile, you can read some of my own thoughts on the preemption question here, and a discussion with experts in our newsletter here.