America’s Ramshackle Marijuana Laws

I was speaking to a legislator this week readying himself for his vote on Florida’s medical marijuana legislation when he posed an interesting question: How can we defend voting in favor of any medical marijuana legislation if in so doing we are essentially passing a state law that is prohibited by federal law?

It’s a great question! Not only because it cites a potential and obvious quandary, but also because it speaks of matters of preemption and federal supremacy.

Article I, Clause 2 of the United States Constitution reads that the Constitution and laws of the United States “shall be the supreme Law of the Land,” and clear as it may appear, it took a Civil War and hundreds of thousands of American deaths to settle this question. But although the question has been settled conceptually, controversies still arise about the extent of that doctrine and the limitations of its scope.

Enter the medical marijuana debate.

Clearly unconstitutional, but…

The Controlled Substances Act (CSA), first passed in 1970, is very clear in Congress’s intent to cover the field of regulating mood-altering drugs such as marijuana.

Citing the lack of any medically accepted use, its high risk of abuse, and its lack of accepted safety for use under medical supervision, the Food and Drug Administration classified marijuana as a Schedule I drug. As such, the use, possession, or manufacture of marijuana is a federal criminal offense, except when used as part of a federally supported research project. There is no exception in federal statutes for any medical use of marijuana.

It would appear, then, that federal law is completely clear on its prohibition of medical marijuana.

So, how is it possible that a state can pass a law, or even a constitutional amendment legalizing marijuana, for any purpose?

The short answer, of course, is that a state may not do so. The closest case to directly address this matter was decided by the Supreme Court of Colorado in 2015; Coats v. Dish Network, LLC.  In it, the Colorado Supreme Court summarized the concept of federal supremacy and said that an activity deemed lawful under state law, but unlawful under federal law, cannot be construed to be a lawful activity.

In other words, just because the state says medical marijuana is legal does not make it legal because such a declaration is superseded, and preempted, by federal law.

This being the case, it should be easy to argue that any state law, whether it is mandated by the state’s constitution or passed by a state legislature is unconstitutional because it would be offensive to the Supremacy Clause.

Maybe not unconstitutional

But here’s the rub.

In 2014, Congress passed the Consolidated and Further Continuing Appropriations Act prohibiting the use of any funds appropriated to the Department of Justice (DOJ) to keep a state from implementing laws relating to the use, possession, distribution or cultivation of medical marijuana. As a result, the federal government, specifically the DOJ, cannot interfere with a state sanctioned medical marijuana program.

So, is medical marijuana legal in a state that has implemented such a program? Odd as it may sound, the best answer I can give you is that it is not legal, but Congress has decided not to do anything about it — for now, or maybe forever.

Is it Constitutional under the Supremacy Clause? This question has not yet been decided, and it is ultimately up to the courts to make the call, but I will give you my opinion. In order for a law to be offensive to the Supremacy Clause, Congress must act in a manner that makes clear its intent to preempt all conflicting laws. Although the Controlled Substance Act qualifies as such a law, the injection by Congress of the medical marijuana provision in the Consolidated and Further Continuing Appropriations Act gave the states the autonomy they need to regulate medical marijuana.

As a result, if asked, I believe the courts will rule that state laws relating to medical marijuana are not unconstitutional despite the prohibition in the Controlled Substances Act.

Clear as mud!

EDITORS NOTE: This column originally appeared in The Revolutionary Act.

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