Outside Publication

Blazing a New Trail: Using a Federalism Standard of Review in Marijuana Cases, The George Washington Law Review, Vol. 85


The current marijuana conundrum continues to cause conflict and tension between the state and federal governments and creates uncertainty for those who engage in actions legal under state law but illegal under federal law.

Any challenge to the constitutionality of marijuana’s scheduling has been shrouded from meaningful judicial review through the employment of two highly deferential standards—rational basis review and arbitrary and capricious review. The marijuana problem can effectively and efficiently be resolved through a revised standard of review. In United States v. Windsor, the Supreme Court deviated from a traditional standard of review and employed a standard of review derived from federalism principles. Windsor serves as an optimal framework for the standard of review that should be employed when deciding whether marijuana’s status as a Schedule I substance is constitutional.

This proposed standard of review would look at whether the federal intrusion into the federal balance is warranted given federalism principles and the personal liberties at stake. One of the bedrocks of the federal government is that individual and state rights should be honored above all but the most important federal imperatives, and this standard of review would finally allow for meaningful judicial review of whether the federal government’s prohibition on marijuana is such an important federal imperative that it should be honored above individual and state rights.

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