“Preemption Up in Smoke: Should States Be Allowed a Voice in Scheduling Under the Controlled Substances Act?”

Ohio State Journal of Criminal Law, Vol. 18, No. 1, 2020 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3768823&dgcid=ejournal_htmlemail_criminal:law:ejournal_abstractlink38 Pages Posted: 9 Mar 2021Oliver KimUniversity of Pittsburgh – School of LawDate Written: February 20, 2020AbstractThe original intent of the Controlled Substances Act (CSA), according to some scholars, was to be a reform package that sought to harmonize the country’s approach to drug policy. As part of a Nixon-era set of reforms, the CSA was not intended to be a harsh, punitive approach but in the intervening years, the CSA lost its original purpose as political winds changed in ways that focused more on punitive approaches to a uniform approach to drug policy.Today, the CSA is conflicting with states’ interest in regulating certain drugs—namely marijuana—as states consider whether to decriminalize certain drugs for medical and recreational purposes. Proponents of marijuana legalization have pursued a number of regulatory and legal remedies unsuccessfully, and despite the seeming popularity of legalization, it has so far failed to advance off the “policy plateau” as evidenced by the inability to advance the Marijuana Justice Act and similar legislation.This proposed paper would explore the history of the CSA, its impact on marijuana legalization, and the ability of states to work within the regulatory structure of the CSA.