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fed·​er·​al·​ism | \ ˈfe-d(ə-)rə-ˌli-zəm \

often capitalized : the distribution of power in an organization (such as a government) between a central authority and the constituent (see ) units under our system of federalism, states bear the primary responsibility for defining and controlling criminal behavior

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fed·​er·​al·​ism | \ ˈfe-d(ə-)rə-ˌli-zəm \ often capitalized : the distribution of power in an organization (such as a government) between a central authority and the constituent (see ) units under our system of federalism, states bear the primary responsibility for defining and controlling criminal behavior Return of Name that Color!

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The distribution of power in an organization (such as a government) between a central authority and the constituent

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Federalism is a form of government in which a constitution distributes powers between a central government and states, provinces, or republics. Lower entities such as municipalities, towns, and districts are created by the states and have no sovereign power of their own.  The national and states governments both exercise direct authority over individuals.

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Federalism was the great, new principle at the heart of the American Constitution. It is the idea that state governments should regulate local matters and that the national government should regulate only those things that individual states can't, such as interstate commerce and foreign policy. Since the New Deal, federalism has been largely eclipsed by the idea that Congress should set uniform policies for almost everything. Now marijuana may be making federalism cool again.

Since the passage of Colorado's Amendment 64 in 2012, the recreational use of marijuana has been permitted by state law, and Colorado pot growers and sellers are licensed and regulated by the state. But in the United States of America, of which Colorado still remains a part, federal law still makes all these things illegal.

This sort of conflict inevitably puts the president in a difficult position. He either has to direct the federal authorities to crack down in the permissive states, against the wishes of the voters there, or he can tell federal agents to look the other way, which undermines the rule of law.

Like President George W. Bush, President Barack Obama has largely sided with democracy and federalism. When Obama's first term began, no states permitted recreational pot use, though many (including Maine) permitted the use of marijuana for medical reasons. Like Bush, Obama mostly directed federal law enforcement not to prosecute state-regulated medical marijuana dispensaries, although there was an uptick in prosecutions before the 2012 elections.

Now that Colorado and three other states have voted to legalize pot altogether, the conflict between democracy and the rule of law has become more acute and the violation of federal law more difficult to ignore, even as the Obama administration has strengthened its determination to do just that.

Of course, legalizing pot remains deeply controversial. (Personally, I am conflicted but am interested to see what we learn from Colorado's experience). The states of Nebraska and Oklahoma, which border Colorado, continue to enforce their drug laws in cooperation with the federal authorities. They complain that, now that Colorado has made pot so easily available, they are arresting, convicting and incarcerating many more people for drug violations.

As they see it, Colorado's state government is getting rich on pot taxes by flouting federal law, while they, who are following federal law, are getting stuck with the bill. So last month, Nebraska and Oklahoma brought suit in the U.S. Supreme Court against Colorado, seeking to get Amendment 64 declared unconstitutional.

It is not clear whether the Supreme Court will address the case on its merits, or which way it will rule if it does. The high court has generally refused to compel state governments to make or enforce any laws that the state's own elected leaders do not support, and so it is unlikely to try to compel Colorado to ban pot or to jail pot smokers or dealers.

But insofar as Amendment 64 takes active steps to facilitate the federally illegal drug trade (by licensing and regulating dealers, for example), it looks like a clear violation of the federal law, and because the Constitution explicitly makes federal law supreme over state law, those parts of Colorado's law will likely be struck down.

A better solution, however, is available. The Congress should embrace federalism and amend the Controlled Substances Act to make the federal regulation of pot respect the choices of the people in the individual states. In states like Colorado that legalize marijuana, the pot business then would become legal under both federal and state law. In states that continued to want restriction, the existing federal laws would remain in place, as would the ban on interstate commerce in marijuana. To assist states that, like Oklahoma and Nebraska, want to continue prohibiting marijuana, the feds should tax legal pot sales and use the funds to beef up state and federal enforcement of the remaining laws.

The Congress already has taken a small step in this direction: the giant omnibus bill passed in December to keep funding the government included a provision barring the use of government funds to enforce federal drug laws against state-regulated medical marijuana providers.

That is a start, but it would be much better to pass a stand-alone bill that explicitly embraces federalism and recognizes the rights of the people in the states to govern themselves. Such a bill likely would have bipartisan support - and it just might begin to make federalism cool, again.
Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

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Conflicting marijuana laws make a case for finding solution in federalism

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Federalism was the great, new principle at the heart of the American Constitution. It is the idea that state governments should regulate local matters and that the national government should regulate only those things that individual states can't, such as interstate commerce and foreign policy.

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It became an issue because the federal government says that marijuana is illegal but then some state governments allow the use of recreational marijuana.

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With so much political and social momentum, it may seem like marijuana is on a roll right now - and it totally is. But there's still one big hurdle to jump: Even if cannabis is legal at the state level, it's still illegal at the federal level. And that tension is making our transition to a new administration even more confusing - and terrifying for marijuana advocates.

All of this goes back to the Controlled Substances Act (CSA), passed in 1970, explains Amanda Reiman, manager for marijuana law and policy at the Drug Policy Alliance. "The CSA placed drugs into schedules based on how dangerous they were, whether they had any medical value, and how addictive they were," she says. "They didn't know where to put marijuana."

At the time, President Nixon recommended putting marijuana in schedule 1, the most restrictive level, which indicated that it had no medical use and a high potential for addiction. Years later, of course, the world learned that Nixon's main reason for the recommendation was that he thought that would make it easier to arrest antiwar protestors and black people.

So, with the mounting evidence that marijuana does have real medical benefits and the revelation of the racist idea behind the drug's original schedule placement, you might think we should just, you know, re-schedule it, right? Well, that's much easier said than done.

"The catch-22 of schedule 1 is that, because schedule 1 drugs are deemed to not have any medical value, we're really restricted in the research we can do on them," Reiman says. By federal government logic, there's no reason to give researchers money to look into cannabis because schedule 1 indicates that it has no medical value. But that makes it nearly impossible to conclusively prove that it does have any value, and get it out of schedule 1.

Even more confusing than that, though, is that the purview of various aspects of drugs has gone back and forth between federal and state governments. Traditionally, the federal government gets to decide what is and isn't legal, but how severely we want to punish people for more minor violations of those laws has been up to individual states. That means that, even if marijuana is illegal at the federal level, states may have the power to decriminalize possession, for example.

"What is not up to the states ever is whether or not a drug is legal," Reiman says. "But that was challenged with Colorado and Washington in 2012 - they became the first states to pass by voter initiative the fact that adults could legally use marijuana in those states and they could license the commercial sales of marijuana, which was in direct violation of all the history of the federal government."

So recent marijuana legalization has really blurred those historical dividing lines. Essentially, all of the state marijuana programs - both medical and otherwise - only exist at all because the federal government is allowing them to exist. And there's really no guarantee that the federal government will continue to respect those states' decisions. "Nothing says the states have the right to make these decisions - that's the conflict that still exists," Reiman says. "If the federal government decides they want to enforce schedule 1 status of cannabis, regardless of what the state wants, they have the right to do that."

That's why marijuana advocates are so nervous about the surprises the oncoming Trump presidency may bring - especially the potential confirmation of notoriously anti-marijuana (among other things) Senator Jeff Sessions as Attorney General.

It's also why we still have to have a disclaimer on all of our marijuana-related articles - even if you're living in a weed-legal state, that's not a guarantee that marijuana is actually legal. Hey, we're just looking out for you.

This month, we're celebrating High January by leaving our stoner stereotypes behind. Instead, we'll take long-time smokers and total newbies through the various complexities of the current cannabis world. It's 2017 and we're ready to blaze a new trail.

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With so much political and social momentum, it may seem like marijuana is on a roll right now - and it totally is. But there's still one big hurdle to jump: Even if cannabis is legal at the state level, it's still illegal at the federal level.

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It may seem like marijuana is on a roll right now. But there's still one big hurdle to jump: Even if cannabis is legal at the state level, it's still illegal at the federal level. And that tension is making our transition to a new administration even more confusing and terrifying for marijuana advocates.

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During the campaign, Donald Trump endorsed medical marijuana and said pot legalization "should be a state issue, state-by-state." Attorney General Jeff Sessions, on the other hand, is a fierce opponent of marijuana and has opposed measures that would limit the federal government's ability to interfere with state decriminalization efforts. Last month, Sessions reiterated the federal government's authority to enforce federal drug laws "regardless of state law," and some fear he will resist congressional efforts to protect medical marijuana from federal drug laws. Yet Sessions is not the greatest threat to continuing state-level marijuana reform efforts.

Lawmakers and citizen initiatives have successfully reformed marijuana laws in a majority of states. Twenty-nine states allow for the medical use of marijuana, according to the National Conference of State Legislatures. Eight have legalized marijuana possession and use altogether, allowing for recreational use. At least a dozen more states have effectively decriminalized possession of marijuana in small amounts. Yet marijuana use and possession remains illegal under federal law, even in small amounts or for medical purposes.

As a practical matter, the federal government has neither the interest in policing nor the ability to police low-level infractions of federal drug laws. Limits on federal law enforcement resources mean that the Drug Enforcement Administration focuses its efforts on larger dealing and trafficking operations. This policy approach was formalized during the Obama administration in the Cole Memorandum, which clarified that the Justice Department has little interest in going after marijuana possession or sale that is compliant with state law and is not linked to interstate trafficking or sales to minors. Nonetheless, the federal prohibition casts a shadow over marijuana-related businesses and activities that have been legalized under state law.

To protect state-level reforms, Congress has enacted appropriations riders that bar the DEA from spending funds to "interfere" with state laws authorizing the cultivation, use, possession or distribution of marijuana for medical purposes. Despite Sessions's opposition, such a rider was included in the most recent spending bill that provides funding through Sept. 30.

The Appropriations Rider sends an important signal that Congress wants to allow states to allow medical marijuana, but it only goes so far. While the rider limits what the DEA can do, and was successfully invoked as a defense against prosecution in a case before the U.S. Court of Appeals for the 9th Circuit, marijuana use and possession remain illegal under federal law, and this has far-reaching implications. Marijuana reform advocates spend lots of time worrying that Sessions will find a way around the appropriations rider or depart from the set of priorities outlined in the Cole Memo. This threat is real, but other threats are greater.

The fact that marijuana possession remains illegal under federal law has far-reaching implications whether or not the DEA can raid medical marijuana dispensaries. For one thing, it means that banks cannot lawfully service marijuana businesses, as doing so means servicing a criminal enterprise. The result is that marijuana sales are conducted almost exclusively on a cash basis. (For more on the banking angle, see this excellent paper by Alabama law professor Julie Hill.) This cannot be fixed through an appropriations rider.

A bigger potential threat comes from the fact that marijuana possession and distribution are predicate offenses under the Racketeer Influenced and Corrupt Organizations Act (RICO). This means that those who produce or sell marijuana are potentially subject to civil RICO suits, whether or not such activities are legal under state law. So held the U.S. Court of Appeals for the 10th Circuit earlier this year. A federal judge once described RICO as "the monster that ate jurisprudence." Barring real reform at the federal level, it could be the monster that ate marijuana federalism, too. Here again, an appropriations rider is insufficient.

The only way to protect state-level marijuana reform efforts is to change federal law, either by ending federal marijuana prohibition or expressly allowing state reforms to proceed. Outright federal legalization of marijuana is unlikely - and might not be a good idea insofar as state-level reform efforts generate useful information about the best way for reforms to occur. Allowing different states to adopt different policies encourages policy experimentation and produces knowledge about the pros and cons of different legal regimes.

The end of federal alcohol prohibition provides a potential model for how state-level marijuana reform efforts could be allowed to proceed. After adoption of the 21st Amendment, federal law continued to prohibit the sale and distribution of alcohol where such activities remained illegal under state law. Put another way, possessing, transporting and distributing alcohol in violation of state law was itself a federal offense. This remains true today. Thus, if a business produces alcohol in one state with the intention of exporting it to another state in violation of either state's laws, it has committed a federal crime. In this way, the federal government allows each state to make its own choices with regard to alcohol policy and limits the effect one state's choices can have on its neighbors. There's no reason a similar approach would not work for marijuana.

Some opponents of state-level marijuana policy reform fear that legalizing marijuana in one state necessarily harms others. Such concerns are likely overstated, as Alabama argued in its powerful Gonzales v. Raich amicus brief, but can be addressed by limits on interstate trafficking, as has been done with alcohol. Marijuana would not be the first product to be legal in some states but not in others, and there's no reason the traditional federalism principles are not equally applicable here. Perhaps Congress should give it a try.

Note: For those interested in this issue, I'll be participating in a panel on Wednesday in Burlington, Vt., "Has Federalism Gone to Pot?" sponsored by the Federalist Society. Here also is my Introduction to a 2014 symposium on the subject, published in the Case Western Reserve Law Review.

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Opinion | Will marijuana make federalism go up in smoke?

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During the campaign, Donald Trump endorsed medical marijuana and said pot legalization "should be a state issue, state-by-state." Attorney General Jeff Sessions, on the other hand, is a fierce opponent of marijuana and has opposed measures that would limit the federal government's ability to interfere with state decriminalization efforts.

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When federal law and state law conflict, the federal law trumps. In states where marijuana has been legalized for recreational purposes, the state laws conflict with federal law. The conflict between state and federal marijuana laws is likely to continue and ultimately require resolution, possibly through a decision by the U.S. Supreme Court.

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Should marijuana be legalized in the U.S.? Thus, goes the "great cannabis debate." Supporters of legalizing the herb say regulating and taxing marijuana will bring in much-needed revenue to the states. They insist that marijuana use is no more dangerous than alcohol use, and might be less so.

Yet, critics of the proposals say that legalizing marijuana would increase its usage, particularly among young people. They argue that driving under the influence of marijuana is even more dangerous than alcohol.

Here's a brief overview of state marijuana laws.
Where is Possession of Recreational Marijuana Legal?
Colorado and Washington were the first states to fully legalize it for recreational purposes. Basically, the legalization of marijuana means you can't be arrested, ticketed, or convicted for using marijuana, if you follow the state laws as to age, place, and amount for consumption. However, you can still get arrested for selling or trafficking marijuana if you aren't following state laws on licensure and taxation.

States that have legalized possession of marijuana for recreational use include the following:
Medical Marijuana
The use of medical marijuana is also another polarizing sub-issue in the marijuana debate. The District of Columbia and 23 states have passed laws allowing smoked marijuana to be used for a variety of medical conditions. States with medical marijuana laws often have some form of patient registry, which may provide some protection against state arrest for possession up to a certain amount of marijuana for personal medical use.

Medical marijuana growers or dispensaries are authorized in some of the following states and may be limited to a certain number of plants or products per medical user. Regulation of marijuana for purported medical use may also exist at the county and city level, in addition to state laws:

Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Washington D.C.

Federal Law and Marijuana in D.C.
Although some states have either decriminalized possession of a specified amount of marijuana for recreational use or for medicinal purpose, federal law continues to prohibit the possession or use of any amount of marijuana. Cannabis is a Schedule I drug according to the Controlled Substances Act of 1970, which classified cannabis as having:

1. High potential for abuse;

2. No medical use; and

3. Not safe to use without medical supervision.

As a result, federal law enforcement officers may technically arrest anyone for possession or use of any amount of marijuana as a violation of federal law. For example, the U.S. Park Police can arrest a person for possessing or using any marijuana on the National Mall, Rock Creek Park, or any other National Park Service land. It is also a federal crime to manufacture and cultivate illegal drugs.
Federal vs. State Laws
When federal law and state law conflict, the federal law trumps. In states where marijuana has been legalized for recreational purposes, the state laws conflict with federal law. The conflict between state and federal marijuana laws is likely to continue and ultimately require resolution, possibly through a decision by the U.S. Supreme Court.

Details about state marijuana laws are listed and referenced in the table below. For more information, see Medical Marijuana Laws by State and FindLaw's Drug Charges section.

Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
Research the Law: Marijuana Laws: Related Resources Confused About Marijuana Laws? An Attorney Can Help
Despite the trend toward decriminalization of marijuana there are still plenty of places and circumstances in which marijuana possession and use may cause legal problems. If you run into legal trouble as a result of marijuana an attorney can help you sort out the laws involved and plan a solid defense. Contact a seasoned defense lawyer near you to get some peace of mind about your state's marijuana laws.

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Details on State Marijuana Laws - FindLaw

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Should marijuana be legalized in the U.S.? Thus, goes the "great cannabis debate." Supporters of legalizing the herb say regulating and taxing marijuana will bring in much-needed revenue to the states. They insist that marijuana use is no more dangerous than alcohol use, and might be less so.

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I don't agree marijuana should be allowed because marijuana can affect are well being. So I believe that this should be decided by the federal government because they will take every state into consideration and know whats better for everyone.