Marijuana, State Extraterritoriality, and Congress

Abstract

The Trump administration inherits the Obama administration’s policy of under-enforcing federal marijuana laws and a nation with a patchwork of divergent state laws. Although allowing diversity and experimentation, such divergence may impose spillover costs to some states. Some states may attempt to address these costs by exercising extraterritorial regulatory powers on their citizens. Although it is unclear and a matter of dispute whether and to what extent states have such extraterritorial authority, this Article shows that it is certain that Congress has power to set the bounds of state extraterritorial regulation, subject to only limited constitutional restraints. The Article then explores several surprising implications of this congressional power. It argues that although Congress would set state extraterritorial powers by means of legislation, most of the considerations informing that legislation would belong to the constitutional domain, not the domain of mere politics. Relying on another work by the author that argues that Congress ought to be governed by Special Norms when it engages in constitutional decisionmaking, this Article shows how such Special Norms would operate in relation to Congress’s determination of state extraterritorial powers.