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After you’ve read this chapter, you will be able to

 3.1 Identify the ways in which federalism divides power between national and state governments.

 3.2 Demonstrate how the flexibility built into the Constitution has allowed it to change with the times.

 3.3 Describe the ways in which the national government can influence the states.

 3.4 Discuss whether federalism fosters or limits citizen participation in government.

What’s at Stake . . . When a State Takes Marijuana Laws Into Its Own Hands?

If you are reading this in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, Washington, or the District of Columbia, or in one of the twenty-nine plus states that has legalized some form of marijuana for medical use, be careful—very careful—how you exercise your rights. Due to the crazy patchwork nature of America’s marijuana laws, what is legal in your home state might get you jail or prison time and a hefty fine if you take it on the road. You can thank the founding fathers’ invention of federalism for this, although it’s doubtful this is what they had in mind when they designed it.

Of course, everyone knows that smoking marijuana is against the law in the United States. Among other things, the U.S. Federal Controlled Substances Act says so. Under that law, passed in 1970, marijuana is a “schedule I drug,” equivalent, in legal terms, to heroin and LSD. But most people also know that, although the U.S. government considers marijuana a drug for which there is “no currently accepted medical use,” most of the states beg to differ, and nine say, “Who cares? It’s just plain fun” (although Vermont and D.C. won’t let you buy it).

So if you live in a state with legal medical marijuana and you have a prescription, or if you stop in at the local pot shop in one of the seven that allow commercial sales, you are good, right?

Well, sort of. Maybe. It depends.

Consider the case of B. J. Patel, a thirty-one-year-old man from Arizona who was traveling through Idaho and was stopped for failing to signal by a police officer using license plate recognition software to target out-of-state drivers. The officer saw the medical marijuana card in his wallet, asked where the pot was, and, when shown by Patel, promptly arrested him. No matter how law-abiding Patel had been when he bought the pot, he was breaking the law in Idaho.

Weedy Territory Laws regarding marijuana have changed in several states (including Colorado, where this image was taken), but cannabis consumption remains illegal in many other states, and marijuana use is still a federal offense. The resulting patchwork of state laws and changing federal enforcement from one administration to the next make for a confusing pot market.

Vince Chandler/The Denver Post/Getty Images

Idaho law provides for imprisonment and a $1,000 fine for under three ounces of pot and up to five years in prison and a $10,000 fine for more than three ounces. “Come on vacation, leave on probation,” says a Coeur d’Alene, Idaho lawyer.¹

Or consider the case of the five brothers in Colorado who sold an oil made from a strain of marijuana that doesn’t even get you high. The plant is rich in a substance, CBD, that is used to treat seizures. It’s legal in Colorado, of course, but there is a global demand for the oil, and the brothers want to expand to meet that demand.² The fly in their ointment is that, even though the oil is not an intoxicant, it is made from marijuana and marijuana is illegal under federal law. So the brothers got their product classified as “industrial hemp,” which is okay by Colorado, but not necessarily by the United States, although it will be if Senate majority leader Mitch McConnell manages to get the Hemp Farming Act of 2018 passed.³

Generally, federal law trumps state law when there is a conflict. The Obama administration, however, followed a policy under which the federal government wouldn’t prosecute for marijuana use in the states where it was legal, as long as the sale of marijuana was regulated.⁴ Try to sell that marijuana, however, or any product made from it, across state lines and the feds would seize it and possibly put the seller in jail. That policy stayed in place until January 2018, when the Trump administration’s attorney general, Jeff Sessions, rescinded it. Colorado senator Cory Gardner took the issue straight to Trump, who assured him Colorado’s pot smokers were safe from federal action. Trump has stood by that position, although his Department of Justice, led by Sessions, has not. Now that he has fired Sessions that may change, although Sessions had White House allies determined to enforce the federal law. ⁵

Finally, consider the case of a Minnesota mom who was arrested in 2014 for giving her fifteen-year-old son marijuana oil on a doctor’s advice to relieve chronic pain and muscle spasms from a brain injury. The pot was purchased legally in Colorado but administered in Minnesota, which had passed a law allowing medical marijuana. The catch? It didn’t come into effect until July 2015. Said Bob Capecchi, who works for the Marijuana Policy Project in Washington, D.C., “Stunned was my initial reaction. I can’t think of an instance where an individual has been brought up on charges like this simply because the effective date hasn’t come around yet for the law that has already been passed. Let’s not forget, there is a medical marijuana law that has been endorsed by the legislature and by the Governor.”⁶

Why is there so much legal turmoil surrounding the use of marijuana, something that a majority of Americans now think should be legal?⁷ Why can an activity that is legal in one state get you fined and thrown in jail in another? Why can the federal government forbid an activity but turn a blind eye to it unless you carry it across state lines? How do the laws get so complicated and tangled that you can get yourself arrested in one state for an activity that is legal in the state where you engaged in it, even if it is soon to be legal in the place where you are arrested? What is at stake when states decide to pass their own laws legalizing marijuana? We will return to this question at the end of the chapter, when we have a better grasp of the complex relationships generated by American federalism.

THE Federalists and the Anti-Federalists fought intensely over the balance between national and state powers in our federal system. Debates over the Articles of Confederation and the Constitution show that the founders were well aware that the rules dividing power between the states and the federal government were crucial to determining who would be the winners and the losers in the new country. Where decisions are made—in Washington, D.C., or in the state capitals—would make a big difference in “who gets what, and how.” Today the same battles are being fought between defenders of state and national powers. The balance of power has swung back and forth several times since the founders came to their own hard-won compromise, but over the past quarter-century there has been a movement, led largely by Republicans, to give more power and responsibility back to the state governments, a process known as devolution.

devolution the transfer of powers and responsibilities from the federal government to the states

More recently, however, as Republicans became more accustomed to holding the reins of power in Washington with their various congressional majorities and their hold on the presidency from 2000 to 2008, their zeal for returning responsibilities to the states became less urgent, slowing the devolutionary trend. Calls for increased national security in the days after September 11, 2001, have also helped reverse the transfer of power to the states. As the state-federal relationship changes, so too do the arenas in which citizens and their leaders make the decisions that become government policy. Fundamental shifts usually mean changes in the probable winners and losers of American politics.

In this chapter we examine the remarkable power-sharing arrangement that is federalism, exploring its challenges, both historical and contemporary. We look at the definition of federalism and the alternatives the founders rejected when they made this compromise, how the balance of power in American federalism has shifted over time, and the structure of federalism today and the ways the national government tries to secure state cooperation.