Psychedelic Federalism
The United States is entering an era of quiet rebellion in drug policy. While federal law continues to classify psychedelics among the most dangerous of substances, several states are charting their own path toward regulated, supervised use. Oregon and Colorado have established psilocybin programs that openly depart from the Controlled Substances Act (CSA), challenging a federal system that has long equated strong prohibitions with morality. These initiatives pose constitutional tests of how far state governments can move when Congress and federal agencies fail to adapt to the reality of stakeholders’ sentiments and use of drugs.
Historically, the Controlled Substances Act (CSA) of 1970 remains one of the most far-reaching assertions of federal police power in American history. It divides drugs into five schedules according to abuse potential and accepted medical use. Psilocybin, LSD, DMT, and mescaline sit at the top: Schedule I, reserved for substances that allegedly have no therapeutic value and a high likelihood of abuse. This classification criminalizes possession, use, and distribution except under narrow federal research protocols.
The CSA’s design makes reform difficult. The Drug Enforcement Administration (DEA) controls scheduling, while the Food and Drug Administration (FDA) defines what counts as legitimate medical use. Neither agency can move without the other. In practice, this creates a self-sealing legal structure: science cannot advance without rescheduling, and rescheduling cannot occur without scientific approval already in hand. The system is circular and ensures that the boundaries of legality remain fixed regardless of evidence or medical consensus.
Oregon’s Measure 109, approved by voters in 2020, inaugurated the nation’s first legal framework for supervised psilocybin use. It allows adults to access psilocybin in licensed facilities under the guidance of trained facilitators. Colorado followed in 2022 with Proposition 122, establishing a broader entheogenic program governed by similar principles. Both laws reject the profit-driven dispensary model of cannabis and instead focus on structured facilitation.
These state frameworks exist in tension with the CSA. Under the Supremacy Clause, federal law ordinarily preempts conflicting state policies. Yet the federal government has so far declined to intervene, and in this silence, Oregon and Colorado have found room to legislate within this gray zone.
In this way, the struggle between state experimentation and federal prohibition places psychedelics at the leading edge of constitutional law. At stake is not only the scope of Congress’s commerce power, as reaffirmed in Gonzales v. Raich (2005), but also the continuing force of state police powers (e.g. states’ historic authority over drug policy and regulation as granted by the Tenth Amendment). When states like Oregon and Colorado design systems for supervised psilocybin use, they assert the principle that governments closest to their people can adapt to evolving norms faster than Washington can.
Stemming from the tension between state and federal control, reform in this area may consequently follow the same path that reshaped marijuana policy (beginning with California’s first medical-marijuana law in 1996 and accelerating with Colorado and Washington’s recreational legalization in 2012) and alcohol law after Prohibition, beginning at the state and local levels before forcing federal accommodation.
Oregon’s Psilocybin Services Division has already licensed over a hundred facilitators and service centers under strict supervision rules, while Colorado’s Natural Medicine Advisory Board is drafting regulations that could extend to DMT, mescaline, and ibogaine within two years. Some municipalities, such as Denver and Oakland, have separately decriminalized possession, creating uneven layers of enforcement across local and state lines. If replicated elsewhere, these differences could generate distinct regulatory cultures, some focused on clinical therapy, others on decriminalization or research exemptions. Like the gradual loosening of alcohol restrictions after the Twenty-First Amendment and the wave of state cannabis legalization that preceded federal forbearance, psychedelic reform may rely on decades of uneven state innovation.
Ultimately, the state-led reintroduction of psychedelics represents more than a policy change. It reflects a renewal of state authority over health and moral regulation within the federal system. Oregon and Colorado’s psilocybin frameworks expose the limits of the CSA and suggest that reform may come not from Congress but from states testing the boundaries of federal power. Whether these programs survive federal scrutiny will show how much room remains for state experimentation in drug policy, and whether America can tolerate this level of legal diversity between municipalities, creating a fragmented policy space.