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Legalizing marijuana: The states' case

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Wednesday, Dec. 26, 2012, 8:57 p.m.

Think the federal marijuana ban dooms state legalization for medical — even recreational — use? Think again. States have a legal basis for allowing marijuana use that's solid enough to prevail in court.

So says Vanderbilt University law professor Robert A. Miklos in a new Cato Institute paper. He focuses on state-legalized medical marijuana but maintains his analysis also applies to Colorado and Washington-state voters' recent approval of recreational use.

“There are ... important limits to the doctrine of federal supremacy” rooted in Article VI of the Constitution, he writes. Those limits derive from the “anti-commandeering principle” enforced by the Supreme Court, which prohibits using “states as instruments of federal governance.”

Federal supremacy is straightforward when Congress legalizes private activity banned by states — but not when Congress bans conduct legalized by states, Mr. Miklos says. Those state laws remain in force because the anti-commandeering principle means Congress can't pre-empt states' inaction — in this instance, declining, via legalization, to enforce the federal marijuana ban.

There's no good reason for any government to ban marijuana, which causes demonstrably less harm than legal alcohol and tobacco; rather, it's marijuana prohibition that's harmful — to otherwise law-abiding citizens and to taxpayers. Kudos to Miklos for outlining a robust legal basis for states to keep America moving toward the outright legalization that must occur.

And we hope Pennsylvania Gov. Tom Corbett and the Republican-controlled state Legislature, each on the wrong side of this argument, take note.

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