Policy, Preemption, and Pot: Extra-Territorial Citizen Jurisdiction

Abstract

In contemporary America, legislators send messages about values through symbolic legislation and lawsuits. One conflict is between states where marijuana is legal and others that continue to ban it. This Article evaluates what might happen if anti-marijuana states made it illegal for their citizens to purchase or use marijuana, borrowing a page from the playbook of activists opposed to reproductive choice who propose that if Roe v. Wade is overturned, individuals could be prohibited from traveling to another state for the purpose of obtaining an abortion. Although such laws would be hard to enforce, they still present important questions of state authority. The Supreme Court has recognized state jurisdiction over citizens and over state territory. If, say, Alabama prohibited gambling in its territory, or by its citizens anywhere in the world, while Nevada’s public policy was to allow gambling in its territory, a difficult conflict would be presented. However, the marijuana controversy does not present the same problem. Federal law categorically prohibits possession, use, and distribution of marijuana. In order to hold that state marijuana laws are not preempted by the federal ban, courts have found that the states do not have a public policy in favor of marijuana, they merely decline to prohibit it. As a result, the policies of the anti-marijuana states do not conflict with the interests of other states in the way that states opposed to abortion or gambling might conflict with states affirmatively allowing those activities. Although the law in this area is not particularly developed, making reliable prediction difficult, a state’s national ban on marijuana seems much more likely to pass muster than would a ban on activities affirmatively promoted by another state.