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The Authorization Continuum: Investigating the Meaning of “Authorization” Through the Lens of the Controlled Substances Act

Posted by on Friday, May 31, 2019 in Notes, Volume 72, Volume 72, Number 4.

Breanna C. Phillips | 72 Vand. L. Rev. 1335 (2019) |


Federal prohibitions are ubiquitous in society. These prohibitions may be absolute, providing no exceptions, or they may be qualified, providing exemptions that allow specified parties to avoid a law’s reach. The power to exempt parties from a prohibition is not limited to the federal government; it may be delegated to states or smaller polities as well. This is the structure that Congress employed when enacting the Mail Order Drug Paraphernalia Control Act: the Act bans, among other things, the sale and distribution of drug paraphernalia but provides an exemption for “any person authorized by local, State, or Federal law.”

While the Act’s exemption appears unambiguous at first blush, interpretive difficulty ensues when one asks what is required of a state or locality to “authorize” federally prohibited conduct. This difficulty is troublesome given the significance that the law attaches to a determination of whether a party is authorized to engage in otherwise prohibited conduct. A party engaging in such conduct is acting unlawfully until she is deemed authorized by law, and a finding that she is not authorized can result in devastating consequences. The importance of whether a party meets the Act’s authorization exemption thus warrants a more nuanced understanding of what is required to “authorize” federally prohibited conduct.

But the law lacks such an understanding—not only for purposes of the Paraphernalia Control Act but throughout the law. This Note aims to provide a framework for discerning what actions are required to authorize otherwise prohibited conduct for purposes of the law. It submits that authorization exists along a continuum: it may be affirmative, more implicit, or inherent. By understanding the full range of meanings that authorization may take, the law will be better equipped to provide a more complete answer when determining whether a party is “authorized.”

Breanna C. Philips