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Medical Marijuana Conflicts

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Conflicting Federal and State Medical Marijuana Policies:
A Threat to Cooperative Federalism

Todd Grabarsky*

Abstract

The legal status of medical marijuana in the United States is something of a paradox. On one hand, federal government has placed a ban on the drug with no exceptions. On the other hand, over one-third of the states have that legalizes the cultivation, distribution, and consumption of the drug for medical purposes. As such, the usage of medical marijuana is an activity that is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented nebulous zone of legality in which an activity is both legal and illegal, an issue that one scholar on the subject has deemed “one of the most important federalism disputes in a generation.” The issue has become heightened as two states have legalized marijuana for recreational (non-medical) purposes as a result of recent 2012 Election.
This Article examines the issue from a federalism perspective. It begins by arguing that unpredictable enforcement by federal authorities in states that have legalized medical marijuana not only threatens state drug policy, but also the efficacy of federal enforcement. This argument is based on the premise that the federal drug ban exists as a cooperation between the states and the federal government. That the federal government relies on the assistance, infrastructure, and know-how of the states is evinced by, as an example, the fact that ninety-nine percent of drug-related investigations and arrests are carried out by state agents. Federal enforcement in a state where the medical marijuana is legal antagonizes the state authorities to the point where cooperating to enforce a dual-ban on drugs—like, for example, heroin—becomes more

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