Does Federal Law Preempt State Marijuana Law? Analyzing the “Conflict”, 1218 COBJ, Vol. 47, No. 11 Pg. 34

• Author: By LUKE C. WATERS
• Position: Vol. 47, 11 [Page 34]

47 Colo.Law. 34

Does Federal Law Preempt State Marijuana Law? Analyzing the “Conflict”

Vol. 47, No. 11 [Page 34]

The Colorado Lawyer

December, 2018

CANNABIS LAW

By LUKE C. WATERS

This article considers whether federal law preempts state marijuana legalization laws.

In 1996, California effected a sea change in American jurisprudence when its voters approved the Compassionate Use Act,¹ the first state-backed, fully implemented, comprehensive medical marijuana program² in the United States. Since then, 31 other states as well as Washington, D.C., Guam, and Puerto Rico have followed suit, adopting comprehensive medical marijuana programs of their own.³ In 2012, Colorado and Washington upped the ante by legalizing recreational marijuana for use by all adults, with seven states since following their lead.⁴ Yet, even as the tide of marijuana legalization continues almost unabated, numerous political actors, including President Obama—a former constitutional law professor—and his administration,⁵ eight former Drug Enforcement Agency (DEA) administrators,⁶ and states such as Nebraska, Oklahoma,⁷ and Arizona,^[8]continue to pose the question: Don't the U.S. Constitution and federal law preempt state marijuana legalization laws?

The answer appears simple enough. Marijuana is, without exception, illegal according to the federal Controlled Substances Act (CSA), under which it is categorized as a Schedule I narcotic.⁹ The states, for their part, have legalized marijuana to different extents, by either exempting individuals who possess, cultivate, distribute, and use it from state criminal and civil sanctions;¹⁰ or by providing those individuals with an affirmative defense to any charges.¹¹ Further, states profit from marijuana via taxing licenses, registration cards, and sales.¹² With such flagrant state actions flying in the face of federal law, it seems apparent that a conflict exists and this is the end of the analysis, because federal law must always preempt conflicting state law.¹³ However, federal supremacy law is not so simple.

To answer the question, this article examines federal preemption, including what constitutes a positive conflict; how the anti commandeering doctrine fits in, including application of Murphy v. National Collegiate Athletic Association^[14] a recent U.S. Supreme Court decision that appears to have direct implications on state legalization; and the effect of Gonzales v. Raich¹⁵ the Supreme Court's landmark medical marijuana decision.

Federal Preemption

Federal preemption is based on U.S. Const, art. XI, commonly known as the Supremacy Clause, which states "the Laws of the United States... shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."¹⁶ To say that Congress's preemptive power is vast would be an understatement, as it is sometimes commonly understood to be nearly absolute.^[17] Yet the power of preemption is constrained in meaningful ways, most notably by the fact that, unlike the Commerce Clause, it is not a substantive power.¹⁸

Preemption issues arise when both Congress and a state pass laws that regulate the same action. Preemption takes one of three forms: express, field, or conflict. Express preemption is the easiest to identify, as it is defined by federal statute as the "unambiguously expressed intent of Congress" to supersede any related state laws on a given subject.¹⁹ If legislative intent does not exist or is unclear, courts may infer preemption, either by finding that the federal government has asserted "field" or "conflict" preemption.

Field preemption occurs when a federal statute is "so pervasive... that Congress left no room for the States to supplement it."²⁰ Conflict preemption requires a less pervasive showing than field preemption, but still requires proof that '"compliance with both federal law and state regulations is a physical impossibility'... or [] state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"²¹ Thus, conflict preemption requires a showing of either a direct or an obstacle conflict. While these definitions seem clear, they are subject to a number of inferences and exceptions. State marijuana legalization, federal marijuana prohibition, and the escalating conflict between the two must be analyzed against this background.

Positive Conflict: A Two-Prong Analysis

Congress created the CSA with a preemption provision, outlining its intent pertaining to the relationship between federal and state laws on the subject of narcotics enforcement. Congress not only excluded express preemption, but also made clear that it had no intent to occupy the field; thus neither express nor field preemption is an issue when determining what standard to apply in evaluating whether the CSA supersedes conflicting state laws.

The CSA states:

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.²²

In hindsight, Congress's foreclosure of field preemption may seem odd, as Congress could have drafted the CSA to expressly preempt state law or to occupy the field, which would have allowed the federal government to undo state legalization schemes. But Congress's decision was likely a pragmatic one, based on the federal government's finite law enforcement resources. Without the assistance of state law enforcement, the CSA would be largely ineffective. In fact, in any given year, state law enforcement officers are responsible for 99% of all marijuana arrests throughout the United States, including those prosecuted by the federal government.²³ It is also unlikely that Congress envisioned a future with states legalizing marijuana en masse.

Notwithstanding the fact that neither express nor field preemption are applicable to the CSA, preemption can yet be asserted when "a positive conflict" exists between federal and state law "so that the two cannot consistently stand together."²⁴ Though seemingly self-explanatory, the positive conflict described in the CSA is the subject of extensive Supreme Court precedent and occurs where there is either a direct conflict or an obstacle conflict.

Is There a Direct Conflict?

As stated in Barnett Bank, N.A. v. Nelson, a direct conflict occurs when "[c]ompliance with both statutes... may be a 'physical impossibility.'"²⁵ The U.S. Supreme Court has consistently construed the concept of "impossibility" between federal and state laws narrowly, so much so that impossibility will not apply, for example, where a federal statute authorizes the sale of insurance and a state statute forbids the sale of the same insurance.²⁶ Recently, in Wyeth v. Levine, the Court reminded litigants arguing in favor of impossibility of their high burden in proving this "demanding defense." It ruled that impossibility did not apply where a state law required a drug manufacturer to change its warning labels after they had been approved by the Food and Drug Administration, because there was no evidence to suggest that the agency would have revoked the amended warning label.²⁷Under the holdings of Barnett Bank and Wyeth, it appears that any action short of explicitly conflicting commands to act one way and also act the exact opposite way would be enough to meet the impossibility prong. It thus appears that the federal government would have a difficult time meeting its burden in arguing for the existence of a direct conflict between the CSA and state marijuana laws.

Further, millions of Americans presumably comply with state marijuana laws every day because no state marijuana law commands an individual to use, cultivate, or distribute marijuana. Rather, these state laws permit individuals to undertake action where the federal government has forbidden it; thus state marijuana laws cannot create impossibility per Supreme Court precedent. The fact that individuals in legalized state marijuana programs are simultaneously complying with both state and federal law frustrates the direct conflict prong.

Is There an Obstacle Conflict?

An obstacle conflict occurs when a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."^[28] A minor inconvenience to federal power is not enough to support a claim that an obstacle conflict exists. In fact, obstacle conflict is construed so broadly that the Supreme Court has held that, when a court is reviewing a law to determine if an obstacle exists, it cannot read one provision or rule but must "be informed by examining the federal statute as a whole and identifying its purpose and intended effects."²⁹ Only when the purpose of the federal statute "cannot otherwise be accomplished" should a court find preemption via obstacle conflict and the "state law must yield to the regulation of Congress."³⁰

Therefore, it seems that the federal government would be hard-pressed to argue that any state marijuana legalization laws, recreational or medical, present an obstacle to the accomplishment of either the CSAs general goals or those specific to marijuana. The Supreme Court has ruled that conflicting state laws do not prevent accomplishment of the CSAs objectives, even when the state has exempted the behavior or a medical necessity defense is available.³¹ The Supreme Court further stated that...