Intrastate Conflicts and Lessons Learnt from Marijuana Legalization

Legalization of recreational marijuana has gained momentum in the United States. As of July 2021, 18 states and Washington D.C. have legalized recreational marijuana. The relatively broad support at state level, however, has not always been reflected at local level. For example, in California (which has been at the forefront of efforts to liberalize marijuana laws since 1996) two-thirds of municipalities banned marijuana cultivation and retail sales and in 2019 twenty-five local governments sued the state to block local home delivery of marijuana. In Michigan, about eighty communities have opted out of the legalization law adopted by voters in November 2018. In New Jersey, about one in four municipalities has introduced or adopted ordinances barring cannabis-related businesses. From a first glance, these local ordinances resemble similar attempts of local authorities to regulate fracking, firearms, minimum wage, GMOs, plastic bags and-more recently- COVID related mandates. States have generally sought to strike down local regulations in these areas by issuing pre-emptive legislation. But marijuana is exceptional. In the majority of cases, states have left localities free to opt of the legalization and to impose local bans on dispensaries, grow facilities and manufacturers of the substance. In New Jersey and New York, for example, states have set a deadline for municipalities to opt out of legalization. Using marijuana as a timely case study, this manuscript explores the often-overlooked area of police powers granted to local municipalities. It suggests that the opt-out approach taken by the states in the legalization of marijuana could represent a possible solution for other intrastate conflicts and that state legislatures could benefit from the marijuana experience to experiment alternatives to tout-court pre-emption of local ordinances and identify new collaborative strategies with local governments.