SCHWARTZ — Volume 62, Issue 3

Presidential electoral politics may protect federalism and state regulatory autonomy more effectively than judicial review or congressional action. Schwartz examines marijuana legalization as a case study in how presidential politics serve federalist interests. The debate over political safeguards of federalism questions whether federal courts should apply deferential review to federal laws allegedly exceeding enumerated powers, or whether the political process sufficiently protects state interests. Scholars emphasize formal constitutional structures and political party interests but overlook a crucial mechanism: presidential aspirants' strategic decisions in competitive swing-state elections. When key swing states have strong policy preferences—such as marijuana legalization supported by significant constituencies—presidential candidates must carefully calibrate positions to avoid alienating those voters. The Obama Administration effectively permitted state medical marijuana legalization by dialing down enforcement of federal criminal law, while Republican opponents failed to make this an election issue. This record demonstrates that presidential electoral politics can be more sensitive to state regulatory autonomy than courts or Congress. The article argues that the political safeguards debate is incomplete without robust analysis of how presidential ambitions and competitive state electoral politics constrain federal intrusions into matters states care about. This insight reshapes understanding of constitutional federalism protection through political rather than judicial mechanisms.

Topics: Federalism · Constitutional Law

Keywords: marijuana legalization · political safeguards · federalism · presidential politics · swing states · state autonomy · federal enforcement · regulatory choice