A Hybrid Approach to Marijuana Federalism

With the evident indulgence of the United States Department of Justice, states are jumping on the bandwagon of legalizing medicinal and recreational marijuana even though marijuana use is criminalized under the Federal Controlled Substances Act. The possibility that the federal government will at some point decriminalize marijuana use poses a challenge for the construction of a regulatory framework. In short, how should the states and the federal government divide regulatory responsibilities? There has been significant academic discussion about possible regulatory frameworks to address this issue.

Drawing upon existing federalism schemes in the environmental and natural resource area, this Article reviews a variety of ways the regulatory relationship between states and the federal government can be structured. It argues that the best framework is a hybrid model of regulation in which federal-state responsibilities differ based on the type and scale of marijuana-related activity.