Robert A. Mikos

Document Type


Publication Title

Journal of Health Care Law and Policy

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Page Number



controlled substances, medical marijuana, federalsim, drug policy


Food and Drug Law | Law | Medical Jurisprudence


States are conducting increasingly bold experiments with their marijuana laws, but questions linger over their authority to deviate from the federal Controlled Substances Act. The CSA bans marijuana outright, and commentators have assumed that Congress sought to preempt all state laws that might somehow conflict with the CSA. Under the preemption rule now in vogue, state marijuana reforms are preempted if they either require someone to violate the CSA or, more controversially, if they pose an obstacle to Congress’s objective of eradicating marijuana. Seeking to avoid such conflicts, government officials have scuttled a number of important state marijuana reforms. This Article aims to clarify state authority in this realm and to highlight more generally the dangers of embracing broad preemption rules. In particular, it suggests that the amorphous language of obstacle preemption has been used to block three types of state marijuana reforms that Congress either could not or clearly did not want to preempt: (1) laws that merely legalize marijuana-related activities; (2) laws that restrict such activities through novel means, such as licensing requirements for marijuana vendors; and (3) laws that only incidentally promote violations of the CSA, such as laws prohibiting employment discrimination against marijuana users. To avoid these mistakes, the Article proposes that courts and lawmakers employ a narrower and simpler direct conflict rule. Under this rule, state law is preempted only if it requires someone to violate the CSA. The Article shows why this direct conflict rule more closely comports with Congress’s preemptive authority and its preemptive designs. It also suggests that the rule should provide some much-needed clarity on an issue that has befuddled commentators for years.



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