Federal law prohibits the cultivaton, distribution, and possession of marijunana, even for purported use in the course of a recommended medical treatment. Yet, California established the first state medical marijuana program, enacted by Proposition 215 in 1996 and Senate Bill 420 in 2003, making it legal under State law, to obtain or grow, and use marijuana if recommended by a doctor. As a result, the constitutionality of pro-marijuana legislation and Congress’ power to regulate this sphere have come into question. In light of the recent increase of marijuana related legislation enacted across the country, and for the welfare of North Carolineans, this paper shall address the legal implications of passing similar medical marijuana laws in North Carolina, and why it is legal and beneficial to do so, but legally offers very limited protection for those who choose to participate in marijuana activities should federal powers decide to engage. The first section shall lay down the legal landscape of Federal and State laws regarding marijunana.
Federal Law: The Controlled Substances Act (CSA)[i] establishes a statutory framework through which the federal government regulates the supply chain of controlled substances. Marijuana is listed as a Schedule I controlled substance, which is deem to have high potential for abuse and no accepted medical use.[ii] Therefore the cultivation, distribution or possession of marijuana is a federal crime. The act also served as a national implementating legislation for the Single Convention on Narcotic Drugs, which is an international treaty the US is part of.[iii]
State law: Under the California Compassionte Use Act (Prop 215), “seriously ill Californians have the right to obtain and use marijuana for medical purposes where…appropriate and… recommended by a physician.”[iv] Patients and their primary caregivers can therefore cultivate and possess a limited amount of marijuana according to their medical needs. Licensed collectives that distribute and physcians that recommend marijuana in the State will not be punished.
Does the State have the constitutional right to enact the California Compassionate Use Act?
One of the first fundamental questions that come to mind would be the power of the State to enact such legislation. Under the American Federalist system, according to the 10th Amendment, “powers not granted to the federal government by the constitution, nor prohibited to the States, are reserved to the States or the people.”[v] This implies two points on the assumption that regulation of consumption is a state right. First, the federal government can encourage but not force the states to to adopt federal regulations such as the CSA. Extending that argument, the federal government cannot command the state’s officers, or enforce legal compliance. Second, with respect to marijuana, Prop 215 was enacted by initiative process,[vi] meaning that Californians could initiate the voting process and vote for the legalisation of medical marijuana. Since it is the powers of the state and its people to decide so, and the people have spoken, the state does have the constitutional right to enact the California Compassionate Use Act. Even so, it only meant that the Act was enforcable within state jurisdiction, and does not negate Federal jurisdiction.
Can Congress limit the Law of the States?
Congress recognises its limits on its control over state delegated legislation, officers and resources. The CSA does address the above issue under Application of State Law,[vii] in that no provision of this subchapter (the CSA) shall be construed as indicating an intent on the part of Congress to occupy the field in which that provision operate, signaling sensitivity to the sovereignty of the States to enact their own laws and police their own citizens. That is “unless there is a positive confict between that provision of this subchapter and that the State law so that the two cannot consistently stand together,”[viii] meaning that Congress is unwilling to relinquish all control over this issue since it is responsible for its own CSA and interstate commerce. Even though Congress have the powers to remove marijuana from Schedule I,[ix] Congress also represents the interest of the United States with regards to the international treaty it signed regarding marijuana, which led it to be categorised as a Schedule 1 drug and ascribed no medical value status in the first place. While it seems to be the case that the federal government is unable to force state legislation to comply with that of federal policies, the above provision is a declaratory challenge to the states that state legislations cannot be in “positive conflict” with a federal statute. Congress is able to challenge the states’ legislation with substantial legislative force under the Supremacy Clause of the Constitution[x] that estabilishes federal statutes such as the CSA, and U.S. Treaties such as the Single Convention on Narcotic Drugs to be the supreme law of the land. It meant that all state judges must follow federal law when a conflict arises between the two legislative sovereigns, hence possibly rendering Californian Prop 215 to be unconstitutional, giving Congress the trump card it needs to limit the law of the States.
The analysis then rests on what “positive conflict” actually means, if there is any in the first place, and if so, what steps can the federal authority take against both state legislation and its citizens. At first glance, there seems to be an obvious clash in idealogies between the CSA and Prop 215, as one criminalises the production, distribution, possession and consumption of marijuana, while the latter not only legalises it, but tax, and sanction state-level distribution programs and centers. However on a legal basis, Prop 215 may be able to coexist with CSA.[xi] CSA explicitly provides that drug enforcement is “the field in which that provision operates,”[xii] declaring it to be the responsibility of the states. Keeping that in mind, the states are also constitutionally empowered to set up laws according to the state’s intent and enforce them within state courts and state lands. Hence, there is no conflict when federal laws are applied in federal jurisdictions and state laws are applied on state lands and in state courts. Regarding marijuana, the states merely permit what the federal government prohibits. Additionally, the interpretation of positive conflict is debatable, in that Prop 215 does not force its citizens to take part in illegal activities, but it merely permits what the CSA prohibits, which the states have no mandate to do so. As long as the states does not aid in criminal activities, there is no positive conflict, rendering federal pursuance of the state’s forced compliance politically and economically undesirable.[xiii]
Can Congress take legal action against providers, physicians, and even State officials?
Although Prop 215 does ensure that patients, caregivers and physicians are not subject to criminal prosecution or sanction, that protection is limited only to the state level powers that birthed it, leaving them vulnerable to criminal prosection from a CSA standpoint.[xiv] While Prop 215 may very well refer to state prosecution, it is arguably safe to assume that the Compassionate Use Act was enacted with the intent to provide legal protection even against the federal prosecution, proving rather futile. Additionally, distribution in California is commonly channeled through state or state-sanction agencies, which means that state officials are legally vulnerable to federal prosecution if they were to be charged with aiding the distribution of marijuana that criminalised under the CSA. Tax revenues generated via these channels are also susceptible to confiscation and federal sanctions could be enforced against the states. Realistically, federal-state showdowns are a very limited possibility due to political reasons of votes, supports, retaliations and of course, taxes. While the federal government does have the obligation to follow its mandate, treaties, and display sufficient control over the states, it is unlikely that the federal will to bring legal action supercedes the desire to avoid long drawn and inciteful provocations with the American public.
What are the reaches of Federal power over the people and intrastate industries?
While the state, the state laws and the state officers have some sort of political insurance against the federal authorities, the same cannot be said for its citizens despite Prop 215. In Gonzales v. Raich,[xv] Raich sued the federal authorities for destroying her marijuana plants meant for her medical condition. Legal under Prop 215 but illegal under CSA, Raich charged that the government had no constitutional right to enforce the CSA on her right to produce and use medical marijuana. The question then, is whether Congress’ power to regulate interstate markets as directed under the Commerce Clause[xvi] for medicinal substances does encompass the portions of those markets that are supplied with drugs produced and consumed locally.
The Court upheld Congress’ power to prohibit purely intrastate cultivation and possession of marijuana, regardless of its medicinal status. Relying heavily on its decision of Wickard v. Filburn,[xvii] the Court maintained that prior precedent had firmly established Congress’ power to regulate purely intrastate activities that is not itself commercial, but are still part of an economic class of activities that have substantial effect on interstate commerce. Like the farmer in Wickard, Raich and others are cultivating for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Vis-à-vis wheat in Wickard and likewise marijuana to Raich, self-cultivation of the commodity would drive marijuana prices down, and therefore cause flunctuations in market prices that influences interstate trade of the drug, frustrating Congress’ efforts to eliminate the drug trade. It is therefore in Congress’ interest to enforce the CSA that deems marijuana to be a Schedule I drug.
As expected, there was dissent against the Commerce Clause claim set forth by Congress, which is often accused to be a source of unlimited powers over state affairs, as exemplified by the Court’s decision in U.S. v. Lopez.[xviii] The same logic applies, questioning whether the activity in question does have substantial impact on interstate economic activity. Consistent with that objective, the Court determined that unlike possessing a gun near school, marijuana cultivation does indeed have substantial effects on interstate commerce just like wheat does, and hence the precedent rule applied. Hence it is ruled that Congress does have the power, supported by both the Supremacy clause and the Commerce clause, to enforce the CSA and regulate marijuana.
The legality of state laws permitting marijuana remains ambiguous. Although pro-marijuana laws in California and many other states have consistently survived preemption challenges, these laws do prove to be a substantive frustration to federal objectives. The federal authorities carefully orchestrate a delicate balance that maintains peace, usually closing an eye to individual consumers so as to prevent unrest. However they still target and raid collectives, stifling supply, raising prices and ultimately suppress aggregrate consumption. Congress’ objectives are partially fulfiled while firmly entrenching the law on their side should they be required to use it. This dynamic creates a unique situation where marijuana activity is legal under state law, but remains a criminal offense under federal law at any one time. Ultimately, marijuana enforcement appears to be the discretionary restraint of the federal government[xix] as it prioritizes limited federal resources to manage the welfare and relationships of its people.
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[i] The Controlled Substances Act (CSA), Title II of the Comprehensive Drug Abuse and prevention Control Act of 1970, 21 U.S.C. §8XXX (1970)
[ii] CSA, 21 U.S.C. §812 (b)(1)
[iii] CSA, 21 U.S.C. §801
[iv] The Compassionate Use Act of 1996 (Prop 215), Cal. Health & Safety Code §11362.5.
[v] Tenth Amendment, U.S. Const. amend. X
[vi] NextCA, Initiative Process, NextCA, http://www.nextca.org/topics/entry/initiative-process
[vii] Appplication of State Law, CSA 21 U.S.C §708 [903]
[viii] CSA, 21 U.S.C. §903.
[ix] CSA, 21 U.S.C. §811 (a)
[x] Supremacy Clause 2, U.S. Const. art VI, cl. 2.
[xi] Various authors, Does a state’s medical marjuana laws put that state in violation of federal drug law? Medicalmarijuana.org, 16 Jun 2008, http://medicalmarijuana.procon.org/view.answers.php?questionID=000634
[xii] Appplication of State Law, CSA 21 U.S.C §708 [903]
[xiii] Obama does not encourage Federal resources to be spent on prosecuting individuals.,Rob Reuteman, The Confused State of Pot law Enforcement, CNBC, 20 Apr 2010, http://www.cnbc.com/id/36179498/The_Confused_State_of_Pot_Law_Enforcement
[xiv] CSA 21 U.S.C. §841 (a)
[xv] Conzales v. Raich, 545 U.S. 1 (2005)
[xvi] U.S.C. art I, cl. 3.
[xvii] Wickard v. Filburn, 317 U.S. 111, 124 (1942) (“No form of state activity can constiutionally thwart the regulatory power granted by the commerce clause to Congress”)
[xviii] United States v. Lopez, 514 U.S. 549 (1995)
[xix] Todd Garvey, Medical Marijuana: The Supremacy Clause, Federalism, and the interplay between state and federal laws, Congressional Research Service, 9 Nov 2012, http://www.fas.org/sgp/crs/misc/R42398.pdf
