By Chris Erly
State legalization and regulatory efforts of marijuana, most notably in Colorado and Washington, conflict with the Controlled Substances Act (CSA), which makes marijuana illegal throughout the country.[1] Marijuana’s Schedule I designation means that it cannot be legally prescribed and cannot be possessed in any amount without constituting a federal crime.[2] Moreover, the Supreme Court has held that the provisions in CSA criminalizing manufacturing, distribution, or possession of marijuana to intrastate growers and users of marijuana for medical purposes do not violate the Commerce Clause.[3] Additionally, the Court has held that state law cannot preempt federal law.[4]
However, the CSA explicitly states that it does not preempt state law unless there is a positive conflict in which the CSA provision and state law cannot stand together.[5] Lower courts have not interpreted CSA preemption over state marijuana laws consistently.[6] Some courts have held that marijuana’s illegal status under the CSA preempts and invalidates state law legalizing marijuana.[7] However, other courts view a state’s refusal to enforce the CSA and legalization of marijuana as not preempted by the CSA.[8] These courts hold that a violation of federal law is separate from a violation of state law, and the state law legalizing marijuana does not imply that the federal law is invalid, but rather that federal and state laws operate in different spheres.[9] Inconsistent application of federal preemption to state laws legalizing marijuana perpetuates confusion among courts’ interpretation of federal law and increases state and federal tensions.[10]
Additionally, these inconsistent laws create a false sense of legality among marijuana dispensaries and users within states where marijuana is allowed. This false sense of legal behavior creates a situation where individuals believe they are acting within the bounds of the law, but then are subjected to seizures and/or federal sanctions.[11] However, Congress may have permanently ended this injustice created by conflicting state and federal laws. As of December, 2014, Congress passed a federal spending bill, which included amendments that prohibit the Department of Justice from using funds to go after state medical marijuana operations and that block the Drug Enforcement Administration from using funds to interfere in state-legal industrial hemp research.[12] Only time will tell how long this band-aid will protect state sanctioned behavior form federal interference. Nevertheless, a more permanent solution will eventually be required, such as an alignment of state and federal marijuana laws.
[1] See 21 U.S.C. § 844 (2006) (stating a first time possession charge of marijuana carries with it a prison sentence no more than one year and/or a fine no less then $1,000); State Marijuana Laws Map, Governing, https://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html (last visited Nov. 9, 2014)(stating that twenty-three states and the District of Columbia have legalized possession of marijuana in some form).
[2] See id. at § 844(a) (criminalizing possession of marijuana); United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 492 n. 5 (2001) (“[S]chedule I drugs cannot be dispensed under a prescription.”). But seeConant v. Walters, 309 F.3d 629, 637 (9th Cir. 2002) (holding physicians may recommend marijuana as required by medical-marijuana laws as a First Amendment right, even if unable to prescribe it).
[3] See Gonzales v. Raich, 545 U.S. 1, 15-16 (2005).
[4] See id. at 29 (holding Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail); United States v. Landa, 281 F.Supp.2d 1139, 1145 (N.D.Cal.2003) (holding that Congress intended marijuana to be outlawed nationwide, including for medical purposes).
[5] See 21 U.S.C. § 903(2006) (attempting to provide states with independence from federal statutes, except when there is a direct conflict).
[6] See Kevin D. Caton, Preemption of State Regulation of Controlled Substances by Federal Controlled Substances Act, 60 A.L.R.6th 175, 175 (2010) (examining various court holdings that have come out on different sides of the preemption debate).
[7] See Butler v. Douglas Cnty., No. CIV. 07-6241-HO, 2010 WL 3220199, at *4 (D. Or. Aug. 10, 2010) aff’d, 457 F. App’x 674 (9th Cir. 2011) (holding that the federal prohibition on the use of marijuana preempts Oregon Medical Marijuana Act (OMMA), so there could be no violation of plaintiffs’ constitutional rights when defendant county and sheriff opposed plaintiffs’ motion to return seized marijuana pursuant to OMMA and urged federal prosecutors to take over prosecution of marijuana offenses); Emerald Steel Fabricators, Inc. v. Bureau of Labor and Indus., 348 Or. 159 (2010) (holding OMMA could not authorize use of medical marijuana because provision was preempted by CSA explicitly prohibiting marijuana use without regard to medicinal purpose).
[8] See Caton, supra note 6 (citing Ter Beek v. City of Wyoming, 846 N.W.2d 531 (2014)).
[9] See United States v. Hicks, 722 F. Supp. 2d 829, 833 (E.D. Mich. 2010) (concluding that Michigan Medical Marijuana Act has no effect on federal law, and possession of marijuana remains illegal under federal law, even if it is possessed for medicinal purposes in accordance with state law); White Mountain Health Center, Inc. v. County of Maricopa, No. 2012-053585, 2012 WL 6656902, at * 7-8 (Ariz. Super. Dec. 3, 2012) (holding CSA did not preempt Arizona Medical Marijuana Act (AMMA) authorizing, under state law only; local cultivation, sale, and use of medical marijuana because AMMA provided no meaningful obstacle to federal enforcement of CSA).
[10] See Claire Frezza, Medical Marijuana: A Drug Without A Medical Model, 101 Geo. L.J. 1117, 1126 (2013).
[11] Matt Ferner, Colorado Pot Shops Raided by the Feds May Be Shut for Good, Huffington Post (April 15, 2014), https://www.huffingtonpost.com/2014/04/15/raided-colorado-pot-shops_n_5154525.html (discussing DEA raids on state sanctioned pot shops in Colorado, which resulted in seizures of two million dollars worth of product).
[12] Matt Ferner, Congress Blocks Feds From Targeting Medical Marijuana, Hemp Cultivation, Huffington Post (Dec. 10, 2014), https://www.huffingtonpost.com/2014/12/10/congress-blocks-feds-from_n_6302530.html.