Medical Marijuana Policy and the Virtues of Federalism

We analyze the policy issue of medical marijuana to illustrate how key virtues of federalism can be used to make a threshold determination as to whether a particular public policy should be subject to federal regulation or reserved for states. When the substantive merits of the policy issue are currently debated and unresolved, and that issue area has traditionally been regulated by states, we employ a three-prong test for determining as a threshold matter whether the federal government should assert preemptive jurisdiction over the policy. That test has is roots in well-established theories of federalism that comprise what we refer to as the “classic virtues of federalism.” Based on our analysis, medical marijuana is a policy that should be left to the states.