Federalism and state marijuana legislation.

• Author: Nickles, Dean M.

INTRODUCTION

An increasing number of states have passed legislation legalizing medical and recreational marijuana. This Note provides a survey of the language utilized by these states in their legislation and legislative materials, searching for and highlighting those purposes and intentions of the states, which implicate, explicitly or implicitly, federalism. Through this survey of mostly primary source materials, various trends and similarities among the materials will be apparent, and this Note will provide a useful resource for those trying to understand why the states may have enacted these laws.

The Note proceeds in four Parts. Part I provides information on the current legal landscape surrounding marijuana and its regulation as a controlled substance, briefly exploring the federal position on marijuana to provide necessary context for the actions of the states. Part II explores the state legislation and materials related to medical marijuana legalization, examining and surveying the primary source material from many states. Part III explores state legislation and materials related to recreational marijuana legislation in a similar way. Part IV takes a brief glance at a historical issue, which presented a conflict between state and federal law, and provides tentative suggestions for why marijuana legalization might be unique. Throughout, this Note puts forward propositions regarding why states may have included particular language, also noting when explicit and implicit federalism arguments could be at work.

1. CURRENT LEGAL LANDSCAPE

   1. Controlled Substances Act

      The Controlled Substances Act (CSA) (1) was enacted in 1970 by Congress as part of the Comprehensive Drug Abuse Prevention and Control Act. (2) In the CSA, Congress declared that while many "drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people," it was nonetheless true that "[t]he illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." (3) To further this purpose, the CSA created a classification system comprised of five "schedules," designated I, II, III, IV, and V. (4) Schedule I substances are those considered to have no accepted medical use and high potential for abuse. (5) Schedules II through V have increasing levels of accepted medical use and decreasing potential for abuse. (6) The Attorney General is charged with applying the provisions of the CSA to the controlled substances and is also able to add or alter the scheduling of any controlled substance. (7) For the purposes of this Note, what is most relevant is that marijuana was placed in Schedule I, (8) and since that time has been considered by the federal government to have no accepted medical uses, a high potential for abuse, and a lack of accepted safety for use under medical supervision.

   2. State Action

      Beginning with California in 1996, (9) numerous states have passed their own measures legalizing the medical use of marijuana, and recently recreational use as well. Currently, twenty-four states and the District of Columbia have laws permitting the medical use of marijuana, (10) and Washington, (11) Colorado, (12) Alaska, (13) Oregon, (14) and the District of Columbia (15) passed laws legalizing the recreational use of marijuana. The states have offered various reasons for the passage of these laws, and federalism has explicitly and implicitly been among them.

      While the Supreme Court in recent years has discussed the importance of federalism in numerous cases, in 2005 Gonzales v. Raich (16) dealt with Congress's ability to prohibit the cultivation, possession, or use of medical marijuana pursuant to the Commerce Clause as part of the regulatory scheme of the CSA. California's Compassionate Use Act permitted such conduct. (17) The Court ultimately decided Congress could regulate this conduct, (18) but statements from amicus briefs, submitted by various states, are illustrative of some federalism arguments made by the states. Alabama, Louisiana, and Mississippi submitted one brief, and California, Maryland, and Washington another, but both asserted this area of regulation was one within the States' "police power" to protect the health, safety, and welfare of their citizens. (19) Although Congress's ability to regulate this type of local conduct under the CSA was made clear by the Court, this decision stopped neither the passage of numerous medical marijuana laws since 2005, nor the passage of laws legalizing recreational marijuana.

   3. Current Department of Justice Policy

      There has not been another Supreme Court decision on the issue since Raich, but important statements of federal policy have been issued by the Department of Justice in a series of memoranda, the most recent of which was issued on August 29, 2013. (20) The Department of Justice acknowledged in this memorandum that "Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime.... [and the] Department of Justice is committed to enforcement of the CSA consistent with those determinations." (21) However, the memorandum recognized the Department of Justice has limited resources. For the purpose of utilizing its resources in the most efficient way, the memorandum lists enforcement priorities which are "particularly important to the federal government," (22) and thus more likely to encourage the federal government to intervene.

      It is also made clear that there is an expectation that states which have authorized the use of marijuana will effectively regulate the practice, (23) and there is a greater chance the federal government will intervene if the state actions are deemed ineffective. (24) The August 2013 memorandum does depart slightly from the previous memoranda in that it extends the recommended exercise of prosecutorial discretion to instances of recreational and commercial marijuana use and production, beyond instances of medical use. (25) As with previous memoranda on marijuana, this memorandum disclaimed any provision of a legal defense to violations of federal law and emphasized that while investigation and prosecution are most likely in those situations which implicate one of the enforcement priorities listed previously, it is not an exhaustive or exclusive listing. (26)

   4. Preemption

      With these state laws appearing at first glance to potentially conflict with federal law, the possibility of preemption being used to challenge them is a possibility. There are currently three main types of preemption: express preemption, conflict preemption, and field preemption, all of which have been recognized and established by the Supreme Court. (27) Express preemption occurs when Congress uses express, explicit terms to preempt state authority. (28) Field preemption is implied in situations where a scheme of federal regulation is

      'so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' because 'the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.' (29)

      Conflict preemption occurs where state law actually conflicts with federal law, to the extent that compliance with both regulations is impossible (sometimes called impossibility preemption), (30) or where state law presents an "obstacle to the accomplishment and execution of the full purposes and objectives of Congress" (sometimes called obstacle preemption). (31) The CSA does contain a statement by Congress of its intended preemptive effect, stating:

      No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together. (32) This statement clearly indicates Congress did not intend to occupy the field, thus eliminating field preemption as an option. In Gonzales v. Oregon, (33) a case decided one year after Raich, the Supreme Court interpreted this provision to not include field preemption. The Court asserted "[t]he CSA explicitly contemplates a role for the States in regulating controlled substances, as evidenced by its pre-emption provision." (34)

      It thus seems that conflict preemption was the preemptive effect Congress intended the CSA to have. There has been disagreement about whether this would include obstacle preemption, impossibility preemption, or both, (35) and this is a potentially important distinction because "[c]ourts have only rarely invalidated a state law as preempted under the impossibility prong of the positive conflict test." (36) Impossibility tends to require state or federal law prohibit what the other requires, making compliance impossible. In the case of state medical or even recreational marijuana legalization, one is not required to possess, use, or cultivate marijuana, so refraining from use would in most jurisdictions be a sufficient possibility to avoid preemption. (37) Impossibility preemption could potentially have more of an impact on the state regulatory measures that go beyond just removing state criminal sanctions, and this is also the reality for obstacle preemption. With the Supreme Court declining to deal with preemption issues in its previous decisions involving the CSA and marijuana, (38) it is not entirely clear how this issue would be decided. This has not stopped states from passing laws legalizing medical and recreational marijuana...