Brandeisian Experiment Meets Federal Preemption: Is Cooperative Federalism a Panacea for Marijuana Regulation?
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This Article traces marijuana regulation’s federal-state dichotomy through a multi-dimensional prism to evaluate states’ rights with a Brandeisian experiment under the Constitution’s Tenth Amendment. The genesis of this federalism conflict is evaluated through the ambiguity of the applicable federal law, while the federal preemption is examined through the dual lens of the Supremacy Clause and the Anti-commandeering doctrine. By evaluating the relevance of cooperative federalism through its constitutional inheritance, this Article proposes a roadmap for implementing cooperative federalism for marijuana regulation. In taking note of the deficiency in contemporary discourse in adequately contextualizing the intersecting rights framework for marijuana regulation, it is further observed that the pertinent inquiry must be indexed not at how much to regulate, but how to regulate by evaluating the collateral risks arising out of the nationwide paradigm shift toward marijuana. Finally, this Article presents the importance of viewing the evolving paradigm through a multi-dimensional prism consisting of safeguards surrounding cross-border contagion, cultural shift, injury to human health and long-term impacts from marijuana’s cumulative effects—issues that may not have been encapsulated within the panoply of current state laws.