By Walter F. Harris III
History of cannabis laws in the United States
Historically, cannabis has a long and storied presence throughout our country’s development. Until the 20th century, cannabis was legal to grow and consume.1 Listed in the United States pharmacopoeia based on medicinal values in 1850, cannabis use for medicinal, recreational and spiritual purposes has been recognized for providing a multitude of medical benefits.2 This changed, however, after the Mexican Revolution in 1910, when newly arrived Mexican immigrants introduced American culture to the recreational, non-medicinal use of “marihuana.” What followed was a singular mission by the Federal Bureau of Narcotics to focus the government’s attention on the new “scourge” facing the nation as a result of these immigrants.4 The results propagated by movies such as Reefer Madness (1936) and sensationally exploited by the newspapers of the day, set the stage for early marijuana prohibition and the states quickly followed the federal government’s lead. By the end of 1937, 46 out of 48 states had officially classified cannabis as a narcotic similar to morphine, heroin and cocaine.5 This led Congress to enact the Marihuana Tax Act of 19376 (“the Act”). The Act stipulated that users of cannabis, whether defined for industrial and medical purposes, had to register and pay a tax of $100 per ounce. Those failing to pay the appropriate tax faced criminal charges for tax evasion, not the actual use of the plant. Because the Tenth Amendment prevents the federal government from directing states to enact specific legislation or require state officials to enforce federal law,7 Congress elected to utilize a tax as an indirect method to prohibit the production, use and distribution of cannabis within the states. It was the fastest way to begin this indirect “prohibition” nationwide. Congress knew that it was easier to layer the law with taxes and paperwork that would serve to deter all users of marijuana for any purpose. Moreover, it was easier t o prove tax evasion than to prove criminal use. Anyone found in violation of the Act was subject to extreme fines and up to five years imprisonment.8
Over time, the United States has continuously categorized cannabis as a dangerous drug. Ultimately, this culminated in the inclusion of cannabis in the federal Controlled Substance Act of 19709 (“CSA”), which replaced the Marihuana Tax Act. The CSA is the key federal policy under which marijuana is regulated.10 It was borne ostensibly out of the self-indulgent excesses of the 1960s. When President Richard Nixon took office in 1969, he urged Congress to “get tough on drugs.” The CSA divided controlled substances into five “schedules,” ranging from Schedule I, the most dangerous, to Schedule V, the least dangerous. Marijuana was listed as a Schedule I drug under the CSA, meaning (1) it has “high potential for abuse”;12 (2) it “has no currently accepted medical use in treatment in the United States”;13 and (3) there is a lack of accepted safety for its use under medical supervision. It joined heroin, LSD, ecstasy, methaqualone (Quaalude) and peyote on this list.15 Surprisingly, cocaine and methamphetamine—highly addictive drugs with a long history of recreational use—are listed alongside Adderall and Ritalin as a Schedule II drugs, meaning they have an “accepted medical use.”
Since cannabis is regulated at the federal level as a Schedule I drug, no doctor can prescribe it under federal law because it purportedly serves no “legitimate medical purpose.”17 States that have legalized marijuana have attempted to shield medical professionals from liability by omitting the use of the word “prescribed,” which is in direct conflict with the CSA. Instead, these states convey a doctor’s intent with verbiage such as, “recommendation” or “certification.” But still, if the federal government was so inclined, it could repeal a doctor or pharmacist’s Drug Enforcement Administration (“DEA’”) registration, exclude them from participating in the Medicare program, cause them to lose their assets, and in the most extreme cases, send them to prison.18 Indeed, under federal law, “knowingly, or intentionally… manufactur[ing], distribut[ing], or dispens[ing], a controlled substance” such as marijuana carries a penalty of up to life imprisonment.19 Today the CSA still serves as the federal drug policy under which all controlled substances including marijuana are regulated. The federal government can impose substantial criminal and civil penalties for violation of the Act.20 Because the Supremacy Clause of the Constitution mandates that federal law supersedes all state laws to the contrary, marijuana is still effectively illegal throughout the country.
Dichotomy between federal and state Law
So how does a Schedule I drug banned under federal law find itself now legal under state law in those states that allow medical or recreational use? The answer is complex.
James Madison, the father of modern federalism, posited that our government occupied a “middle ground between a consolidated or unitary form – one in which the general government possessed complete control over the component units – and the confederal form, wherein the constituent units retained their sovereignty.”21 As such, the theory of cooperative federalism is described as “a partnership between the States and the Federal Government, animated by a shared objective.”22 While the Supremacy Clause under the preemption doctrine is thought by many to be “the supreme law of the land” negating conflicting state laws,23 the Tenth Amendment’s anti-com-mandeering doctrine creates an external restraint on congressional power with regard to the states. It is this restraint that is at issue today with respect to marijuana regulation.
In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court held that “although states are free to cooperate in the enforcement of federal law if they wish to do so, state apparatuses cannot be conscripted into the service of federal policy as such commands are fundamentally incapable with our constitutional system of dual sovereignty.” (Emphasis added.) Following this ruling, some states enacted legislation addressing medicinal use of marijuana, and a few other states enacted legislation allowing recreational use. The bellwether state of Colorado became the first state in the Union (followed by Washington State in 2012) to vote overwhelmingly to legalize recreational use of marijuana. This created a direct confrontation and the potential for a serious showdown between the states and the federal government while testing the historical perspective of the doctrine of federalism. In 2013, the Obama administration responded to this rapidly moving legal landscape with the Cole Memorandum. This Memorandum created a hands-off approach by the Department of Justice for prosecution of marijuana offenses for those medical and recreational enter-prises that were in full compliance with their respective state laws. The Memorandum specified that the department was not creating a new legal defense for people who may have violated the CSA. Instead, the Memorandum was intended to guide prosecutors on where to train their scarce investigative resources.26 This was quite a departure from the historical zealousness with which the federal government normally addressed marijuana law enforcement efforts.
Real protection from the Justice Department for states in their efforts to legalize marijuana came about on May 30, 2014 when the Rohrbacher-Farr Amendment (now, Rohrbacher-Blumenauer) prohibited the Justice Department from spending funds to interfere with the...