Cato Policy Analysis and Forum on State Legalization and Preemption
Cato Institute (
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.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Our history as a nation is clear on certain matters regarding state rights issues. It is indeed rare ,that a federal court has ruled in favor of states rights, regardless of the issues, but it does happen now and then. The point here though, is that it could never happen, that a federal court other than the  U.S. Supreme Court  could make such a ruling favoring state rights - as only the high court has the ability to do so, if an international treaty agreement is also in opposition to the states rights issue in question. 

These recent  cannabis state elections are such issues, and do not have the slightest chance of remaining in court , more than the time it takes for the courts to reject them , as they will be,  should they be attempted.

As to attempts at causing the US Congress to give exemption to states that have passed recreational cannabis use laws, this could be done, once the Congress leaves the UN Drug Treaty , as the Senate did to the UN Disability Treaty last week.  And the odds of this happening, along  with a Presidential signature attached making it into law , is zero.

And yet

And yet we have medical marijuana already... and the federal government hasn't went out of its way to sue any of those states to get rid of those laws.  This is no different.. and the public won't support the administration.  If anything, it's going to lead to a bigger rift in our country if they have the arrogance to oppose what the majority of Americans very clearly want.  This is a democracy, right?

Treaties Trump the Constitution?

So, how is it that Bolivia was party to the treaty all those years, even though coca was legal in that country?

Fact is, the federal

Fact is, the federal government has created  a Grand Inquest in San Francisco, and has confiscated tax records of the government of Mendocino; the chatter being that the justice dept policy to look the other way, regarding lower government taxing and regulatory legislation of unlawful substances, is shifting to uphold such statues. Since the Janet Reno permissions and prohibitions circa 1996, it has been known what the governments position is on the law; as to when they enforce it, that is and has always been the governments call- when to act and when not to, is completely up to them. Justice dept. documents show this clearly. As to non binding International agreements not being followed- The  UN Drug  Treaty Organization opposes the recent recreational cannabis  elections in the United States, while they have said that medical is an approved part of the treaty, as scientific inquiry is. This is the same Treaty group that handles all joint planning with the United States regarding every drug issue in the world. Not likely Obama will do anything that would upset such relations, but until he and the United States Congress would do so, no  federal court in the land, could ever rule in favor of a states rights issue, where it conflicted with both federal law and international law as these recent elections do.

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