Joseph Tutro


On November 6, 2012, three states proposed landmark legislation for a vote to the people of their respective states. These landmark pieces of legislation allowed for the recreational use of marijuana. While the potential legislation failed in Oregon, the proposed legislation passed in Colorado and Washington. Washington's marijuana legislation went into effect on December 6, 2012," and Colorado Governor John Hickenlooper signed Colorado's marijuana legislation into law on December 10, 2012. The passage of recreational marijuana usage legislation in Colorado and Washington joins them with twenty states, plus the District of Columbia, which have legalized use of marijuana for medical purposes.

While it has been legalized by the states, marijuana still remains illegal under federal law. Because of the Supremacy Clause of the United States Constitution, federal law remains binding on the states.' Therefore, while the states have passed legislation legalizing the use of marijuana, whether for medical use or recreational use, these laws are essentially moot due to federal law. The issue now is whether the federal government will investigate and prosecute those who follow their state marijuana laws or will use investigatory and prosecutorial discretion to allow the laws to take effect.

This paper will discuss the ever-widening acceptance by state legislatures of marijuana, especially for medical purposes, and the refusal by the federal government to recognize these acceptances, thus resulting in a federalism fight. The federal government should use its investigatory and prosecutorial discretion to allow these state experiments with marijuana. The current arguments for keeping marijuana illegal can be examined by allowing the states to implement their new and existing marijuana laws.