INTRODU CTION
M ARIJUANA LAW S
34;useful” marijuana and between six and twelve marijuana plants.32 A few states allow doctors to set the amount based on patient needs.33 States also prevent qualified patients from using or possessing marijuana in certain settings, such as on public property or under driving.34 In the vast majority of states, there is simply no legal way for qualified patients to obtain usable marijuana or even the plants or seeds needed to grow their own supply.
Current Federal Law
Substance of the CSA
concluding that the statute's provisions "leave no doubt that the [medical necessity] defense is not available" under the CSA, given Congress' determination that "marijuana has no medical benefits worthy of an exemption"). Application of the civil provision is also not available if the defendant has a prior drug conviction.
Constitutionality of the CSA
Raich involved a challenge to Congress's power to regulate the noncommercial, purely intrastate production and consumption of marijuana for medical purposes—an application of the CSA that everyone would agree is at the outer limits of Congress's Commerce Clause -authority. In short, the Court removed any doubts that may have existed about the constitutionally permissible reach of the CSA.
Something's Gotta Give
DE JURE STATE POW ER
In this piece, I try to dispel the confusion over what is an admittedly complex issue: the legal status of state medical marijuana laws. Unlike many of the authorities discussed above suggesting that state laws are preempted, I argue that most provisions of state medical marijuana laws survive preemption analysis—they are legally enforceable despite their apparent conflict with federal law. . Most importantly, this is the first article to explain in detail why Congress has not preempted—and more importantly, may not preempt—most state medical marijuana laws.
Section C then examines the legal status of five common provisions of state medical marijuana laws and explains why most provisions remain enforceable. Section D analyzes Congress' other options for overturning state legislation and ultimately concludes that, as a practical matter, Congress probably cannot overturn state laws legalizing medical marijuana through permissive means such as conditional spending. In short, states have strong de jure power to legalize medical marijuana, at least for purposes of state law—much more power, in fact, than conventional wisdom suggests.
Congress's Preemptive Power
For example, imposing a $100 fine (or providing a $100 subsidy) for action X would decrease (or increase) the occurrence of X relative to the natural state. The state of nature – and not the action/inaction per se – defines the line between permissible priority intervention and impermissible command. Namely, Congress can drive states into this natural state or prevent them from exiting this natural state (preemption), but it may not expel them from the natural state or prevent them from returning to the natural state (command).
Second, the state of nature standard follows an important and often overlooked feature of the Court. Unlike Hobbes, however, I posit a state of nature in which government (both state and federal) exists but does not act, at least on the matter at hand (here, marijuana). I propose the state of nature standard as an interpretive guide that more accurately and fully captures the distinction between command and deterrence than the unadorned action/inaction framework.
Congress's Preemptive Intent
However, taking into account the constitutional principles discussed above, a positive conflict appears to arise any time a state engages in, requires or facilitates conduct or inaction that violates the CSA. For example, states cannot grow marijuana for qualified patients, as that would be the conduct expressly prohibited by the CSA.' 14. Nevertheless, while the CSA certainly preempts certain state marijuana regulations, its preventive reach is not as broad as it might be under the anti-commandeering principles discussed above.
In particular, the CSA does not prohibit waivers; that is, it imposes no duty to act (general or otherwise) such as the duty to report known violations.” 5. For this reason, the CSA does not require states to destroy marijuana seized from qualifying patients, as discussed below in v. Violation CSA with state action would likely represent a departure from the state of nature.
The Legal Status of State Medical
- Exemptions from State Sanctions
- Registration/ID Programs
- Protection from Private Sanctions
- State Cultivation/Distribution
- State Return of Seized Marijuana
Certainly, private behavior has undoubtedly changed as a result of the introduction of state exemptions. It seems safe to assume that in the state of nature, marijuana use would be widespread. They do not remove private barriers to marijuana use, that is, barriers that exist in the state of nature.
The involvement of state agents would represent a clear departure from the state of nature and would therefore be preventable. Although marijuana is available in its natural state, a state distribution program would likely provide something unique—a safe, inexpensive, consistent, and reliable supply of marijuana. On the other hand, returning seized marijuana to the original owner only restores the natural state.
Congress's Other Options
DE FACTO STATE POWER
Even so, state exemptions would amount to little more than token gestures if the intended beneficiaries were unwilling to defy the federal ban. Although states may eliminate imposed sanctions for marijuana use and cultivation, this may not prohibit the federal government from imposing its own.1 47 In other words, the discovery that states have more de jure power than previously recognized will a represents a somewhat hollow victory for states' rights and medical marijuana advocates, unless that de jure power also has practical consequences. Section A demonstrates that the federal government's ability to enforce its prohibition is very limited, limiting its influence on private behavior (and also the importance of Attorney General Holder's recent proposal that the DEA should stop selling medical marijuana- targeting pharmacies, reduced).
The federal government has too few law enforcement agents to handle the large number of potential targets. Once again, however, this section concludes that federal influence over private behavior is quite limited. Indeed, the effect of the federal prohibition may be even weaker than Section A suggests when we consider how these other forces—possibly shaped by state law—help enable or even promote the conduct Congress prohibits.
Enforcement of Legal Sanctions
Seen from this perspective, the federal ban on medical marijuana does not actually prevent the possession or cultivation/distribution of the drug. The federal government employs 105,000 law enforcement agents, only about 4,400 of whom work for the DEA, the main federal drug crime agency. Only a few hundred simple possession (marijuana) cases are prosecuted by the federal government each year.
So by carefully defining the job doctors must perform, states have prevented the federal government from squeezing one of the key bottlenecks in state medical marijuana programs. This lack of barriers implies that if the federal government shuts down one major marijuana supplier, another could easily take its place. Short of dramatically increasing the federal budget for law enforcement, Congress has few options to give the CSA some traction.
Beyond Legal Sanctions-Why People
Internal Preferences
The theory is that the behavior, such as the use of marijuana, will appear more dangerous or depraved if the law formally condemns it. However, the federal government's anti-marijuana campaign does not seem to be changing public perceptions of marijuana use. Studies have shown that the anti-marijuana campaign did not reduce the likelihood of marijuana use, nor did it change public attitudes toward the drug.174 People naturally refrain from using.
34; exposure to the campaign did not prevent the initiation of marijuana use and did not affect the restriction of marijuana use among current users"). finding that exposure to a national anti-marijuana campaign and school drug curriculum significantly reduced past-month marijuana use. Indeed, their opposition to state medical marijuana laws stems in large part from the widely held view that these state laws are actually changing people's beliefs about the dangers of marijuana use and perhaps drug use in general.
Moral Obligation to Obey Law
Additionally, although states have not developed a public relations campaign to match that of the ONDCP, proponents of medical marijuana laws have developed effective political campaigns to enact such laws. Federal drug authorities are clearly troubled by the signal they believe is being sent by state medical marijuana laws and the political campaigns behind them. However, despite the general compulsion to obey the law that many people feel, the compulsion to obey the federal prohibition of marijuana is probably quite weak, for two main reasons.
When everyone knows that a law is not being kept, the moral obligation to obey that law ceases and compliance suffers.18 6 As Dan. In other words, the lack of enforcement of the federal ban may have undermined not only the deterrent effect of the ban's sanctions, but also the deterrent effect of the general moral obligation to obey the law. Second, people may feel relieved of the obligation to obey federal prohibition because state law permits marijuana use.188 It is of course possible to obey both state and federal law by not using marijuana at all, but citizens can reject the obligation to use marijuana. obey federal law when they believe that the state—and not Congress—has the “legitimate right to dictate their behavior” regarding marijuana use.8 9 Congress's perceived right to dictate behavior may be even weaker in the nine states where medical marijuana laws have been passed by voter referendums.
Social Norms (and Sanctions)
It is of course possible that detection of medical use of marijuana is low, such that social norms would not have a significant influence on marijuana use. The CSA strongly suggests social disapproval, but permissive state laws suggest social tolerance – and possibly even approval – of medical use of the drug. The federal ban on the medical use of marijuana was passed nearly forty years ago, when Congress placed marijuana on Schedule I of the CSA.
On the contrary, opinion polls consistently show that more than 70 percent of the American public now approves of the medical use of marijuana. This event may have been sufficient to encourage the use of the drug in California, although drug norms elsewhere have not yet changed. States have succeeded in removing—or at least reducing—the biggest barriers to the medical use of marijuana: state legal sanctions and the personal, moral, and social disapproval that once might have inhibited the drug's use.
