Medical Marijuana Preemption Issues:A Guide for the Perplexed

Robert A. Mikos

Five types of state medical marijuana laws, organized by function

1. Legalize—shield user / supplier from state imposed criminal / civil sanctions

2. Administer—help state determine whether user / supplier exempt from sanctions

3. Restrict—limit what legal user / supplier may do

4. Protect—shield user / supplier / etc. from privately imposed sanctions

5. Provide—provide marijuana directly to residents

The CSA’s preemption clause

“No provision of this title 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 . . . unless there is a positive conflict between that provision of this title and that State law so that the two cannot consistently stand together” (§ 903)

Preemption rules

1. Conflicta) Impossibility—impossible to comply with both

state and federal lawb) Obstacle—state law undermines congressional

objective

2. Field3. Sui generis

State laws obviously pose obstacle . . .

Passage of state laws has increased the consumption, cultivation, and distribution of marijuana:

1. Eliminated state sanctions

2. Eliminated some private sanctions

3. Softened fears of marijuana, etc.

4. Not yet but . . . some states have proposed directly providing / subsidizing marijuana

But not every obstacle can be preemptedAnd some, Congress might not want to preempt

The anti-commandeering rule limits Congress’s preemptive power

§ 1: The possession , cultivation, or distribution of marijuana is a felony, punishable by a term of imprisonment and fines [adopted, 1937]§ 2: A defendant who possess, cultivates, or distributes marijuana for purely medical purposes may raise an affirmative defense to a charge brought under § 1 [adopted, 2012]§ 3: The affirmative defense created by § 2 shall only be available to persons who have obtained a valid medical marijuana ID card or license from the State Department of Health [adopted 2012]

Five types of state laws . . .

1. Legalize—shield user / supplier from state imposed criminal / civil sanctions

2. Administer—help state determine whether user / supplier exempt from sanctions

3. Restrict—limit what legal user / supplier may do

4. Protect—shield user / supplier / etc. from privately imposed sanctions

5. Provide—provide marijuana directly to residents

Congress limited the CSA’s preemptive reach

“No provision of this title 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 . . . unless there is a positive conflict between that provision of this title and that State law so that the two cannot consistently stand together” (§ 903)

Protections against private sanctions

• Landlord-tenant law?– CSA bars LL from renting to drug suppliers– If state bars LL from evicting, it would force LL to

violate the CSA

• Employment law?– State employment protection clearly facilitates

“drug abuse”– But CSA doesn’t regulate employment of drug

abusers / suppliers

The preempted status of state laws

1. Legalize—shield user / supplier from state imposed criminal / civil sanctions

2. Administer—help state determine whether user / supplier exempt from sanctions

3. Restrict—limit what legal user / supplier may do

4. Protect—shield user / supplier / etc. from privately imposed sanctions

5. Provide—provide marijuana directly to residents

Some references• On the Limits of Supremacy: Medical Marijuana and

the States’ Overlooked Power to Legalize Federal Crime, 62 Vanderbilt Law Review 1421 (2009)

• A Critical Appraisal of the Department Of Justice’s New Approach to Medical Marijuana, 22 Stanford Law & Policy Review 633 (2011)

• State Taxation of Marijuana Distribution and Other Federal Crimes, 2010 University of Chicago Legal Forum 223 (2010)

• Can States Keep Secrets from the Federal Government? 151 University of Pennsylvania Law Review ___ (forthcoming 2012)