Discuss what cooperative federalism entails, especially in terms of how federal power had been outlined in the US Constitution. Referring to the Cole Memo (released August 2013), what are several of the agreements the United States Department of Justice reached with the State of Colorado regarding Colorado's marijuana policy, and how does this pertain to federal control? 

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First, let's define cooperative federalism. Basically, this references a concept where the federal and state governments agree on which level of government takes responsibility for particular concerns. The Cole memo embodies this cooperative partnership in the area of marijuana legalization and use. What this means is that the federal government will not interfere in or address legalized marijuana activity within Colorado state borders.

Under the Cole memo, the federal government will limit its prosecutorial jurisdiction to the following eight areas:

  • the prevention of marijuana sales to minors.
  • the prevention of proceeds from marijuana sales going to criminal enterprises and cartels.
  • the prevention of state-authorized marijuana activity being used to facilitate illegal drug trafficking.
  • the prevention of firearm violence in marijuana distribution.
  • the prevention of drug-impaired driving that is precipitated by marijuana use.
  • the prevention of marijuana cultivation on public lands.
  • the prevention of marijuana use on federal property.
  • the prevention of state-authorized marijuana products being dispersed in other forms to other states (which have not legalized the drug).

So, based on the above agreements, the federal government will only preempt those Colorado laws that conflict with federal law, as embodied in the CSA (Controlled Substances Act). This means that the federal government, under the auspices of cooperative federalism, will not prosecute individuals whose localized marijuana activities are lawful under current Colorado statutes.

Now, we will discuss the Constitution and how it affects Colorado's right to regulate marijuana cultivation and distribution within its state borders. Traditionally, detractors of state marijuana laws have pointed to the preemption doctrine that is enshrined in the Supremacy Clause in the Constitution to support their position.

Recall that the Supremacy Clause refers to Article VI Paragraph 2 of the Constitution. It states that federal laws always take precedence over state laws. However, under the anti-commandeering provision of the Tenth Amendment, the federal government cannot veto state laws or compel state officers to enforce federal initiatives within state borders:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Both the provisions of the Supremacy Clause and Tenth Amendment constitute the basis for the concept of cooperative federalism, as embodied in the Cole memo. While Colorado cannot stop the federal government from enforcing federal marijuana laws within its borders, federal officials cannot veto or annul Colorado's marijuana laws.

So, the Cole memo represents an agreement between states, such as Colorado, and the federal government, where federal officials will limit its prosecutorial authority only to the eight areas discussed above.

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