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Does Federal Law Preempt State Marijuana Law?

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Does Federal Law Preempt State Marijuana Law? FEATURE | CANNABIS LAW Does Federal Law Preempt State Marijuana Law? Analyzing the “Confl ict” BY LUKE C. WATERS 34 | COLORADO LAWYER | DECEMBER 2018 is article considers whether federal law preempts state marijuana legalization laws. n 1996, California e ected a sea change in v. National Collegiate Athletic Association,14 a seem clear, they are subject to a number of American jurisprudence when its voters recent U.S. Supreme Court decision that appears inferences and exceptions. State marijuana approved the Compassionate Use Act,1 to have direct implications on state legalization; legalization, federal marijuana prohibition, and the rst state-backed, fully implemented, and the e ect of Gonzales v. Raich,15 the Supreme the escalating con ict between the two must Icomprehensive medical marijuana program2 Court’s landmark medical marijuana decision. be analyzed against this background. in the United States. Since then, 31 other states as well as Washington, D.C., Guam, and Puerto Federal Preemption Positive Confl ict: A Two-Prong Rico have followed suit, adopting comprehensive Federal preemption is based on U.S. Const. art. Analysis medical marijuana programs of their own.3 In XI, commonly known as the Supremacy Clause, Congress created the CSA with a preemption 2012, Colorado and Washington upped the ante which states “the Laws of the United States . provision, outlining its intent pertaining to the by legalizing recreational marijuana for use by shall be the supreme Law of the Land; and the relationship between federal and state laws on all adults, with seven states since following their Judges in every State shall be bound thereby, the subject of narcotics enforcement. Congress lead.4 Yet, even as the tide of marijuana legal- any ing in the Constitution or Laws of any not only excluded express preemption, but also ization continues almost unabated, numerous state to the Contrary notwithstanding.”16 To made clear that it had no intent to occupy the political actors, including President Obama—a say that Congress’s preemptive power is vast eld; thus neither express nor eld preemption former constitutional law professor—and his would be an understatement, as it is sometimes is an issue when determining what standard to administration,5 eight former Drug Enforcement commonly understood to be nearly absolute.17 apply in evaluating whether the CSA supersedes Agency (DEA) administrators,6 and states such Yet the power of preemption is constrained con icting state laws. as Nebraska, Oklahoma,7 and Arizona,8 continue in meaningful ways, most notably by the fact e CSA states: to pose the question: Don’t the U.S. Constitu- that, unlike the Commerce Clause, it is not a No provision of this subchapter shall be tion and federal law preempt state marijuana substantive power.18 construed as indicating an intent on the legalization laws? Preemption issues arise when both Congress part of the Congress to occupy the eld in e answer appears simple enough. Mar- and a state pass laws that regulate the same which that provision operates, including ijuana is, without exception, illegal according action. Preemption takes one of three forms: criminal penalties, to the exclusion of any to the federal Controlled Substances Act (CSA), express, eld, or con ict. Express preemption is State law on the same subject matter which under which it is categorized as a Schedule I the easiest to identify, as it is de ned by federal would otherwise be within the authority of narcotic.9 e states, for their part, have legal- statute as the “unambiguously expressed intent the State, unless there is a positive con ict ized marijuana to di erent extents, by either of Congress” to supersede any related state laws between that provision of this subchapter exempting individuals who possess, cultivate, on a given subject.19 If legislative intent does not and that State law so that the two cannot distribute, and use it from state criminal and civil exist or is unclear, courts may infer preemption, consistently stand together.22 sanctions;10 or by providing those individuals either by nding that the federal government In hindsight, Congress’s foreclosure of eld with an a rmative defense to any charges.11 has asserted “ eld” or “con ict” preemption. preemption may seem odd, as Congress could Further, states pro t from marijuana via taxing Field preemption occurs when a federal have drafted the CSA to expressly preempt state licenses, registration cards, and sales.12 With statute is “so pervasive . that Congress left no law or to occupy the eld, which would have such agrant state actions ying in the face of room for the States to supplement it.”20 Con ict allowed the federal government to undo state federal law, it seems apparent that a con ict preemption requires a less pervasive showing legalization schemes. But Congress’s decision exists and this is the end of the analysis, because than eld preemption, but still requires proof was likely a pragmatic one, based on the federal federal law must always preempt con icting that “‘compliance with both federal law and state government’s nite law enforcement resources. state law.13 However, federal supremacy law is regulations is a physical impossibility’ . or [] Without the assistance of state law enforcement, not so simple. state law ‘stands as an obstacle to the accom- the CSA would be largely ine ective. In fact, in To answer the question, this article examines plishment and execution of the full purposes any given year, state law enforcement o cers federal preemption, including what constitutes and objectives of Congress.’”21 us, con ict are responsible for 99% of all marijuana arrests a positive con ict; how the anticommandeering preemption requires a showing of either a direct throughout the United States, including those doctrine ts in, including application of Murphy or an obstacle con ict. While these de nitions prosecuted by the federal government.23 It is also DECEMBER 2018 | COLORADO LAWYER | 35 FEATURE | CANNABIS LAW unlikely that Congress envisioned a future with Supreme Court precedent. e fact that individ- that Congress could preempt all state laws in states legalizing marijuana en masse. uals in legalized state marijuana programs are opposition to the CSA and force the states to Notwithstanding the fact that neither express simultaneously complying with both state and either adopt the CSA or enact nearly identical nor eld preemption are applicable to the CSA, federal law frustrates the direct con ict prong. state laws, which would be interpreted con- preemption can yet be asserted when “a positive sistently with the federal statute.33 In fact, a con ict” exists between federal and state law Is ere an Obstacle Con ict? prevailing view of Congress’s power is that if “so that the two cannot consistently stand An obstacle conflict occurs when a state law “Congress can legislate at all in a given area, together.”24 ough seemingly self-explanatory, “stands as an obstacle to the accomplishment then it can always preempt state power in that the positive con ict described in the CSA is the and execution of the full purposes and objectives a r e a .” 34 Further, current scholarship suggests that subject of extensive Supreme Court precedent of Congress.”28 A minor inconvenience to federal Congress has been given vast power to supersede and occurs where there is either a direct con ict power is not enough to support a claim that an inferior state laws and could likely preempt or an obstacle con ict. obstacle con ict exists. In fact, obstacle con ict any state regulation of marijuana, though is construed so broadly that the Supreme Court such an action would likely have far-reaching Is ere a Direct Con ict? has held that, when a court is reviewing a law to unintended consequences.35 So why doesn’t As stated in Barnett Bank, N.A. v. Nelson, a direct determine if an obstacle exists, it cannot read Congress “commandeer” state law and shutter con ict occurs when “[c]ompliance with both one provision or rule but must “be informed nascent state marijuana programs by making statutes . may be a ‘physical impossibility.’”25 by examining the federal statute as a whole and them illegal? The answer is, because of the e U.S. Supreme Court has consistently con- identifying its purpose and intended e ects.”29 Only “anticommandeering rule.”36 strued the concept of “impossibility” between when the purpose of the federal statute “cannot e anticommandeering rule is based on federal and state laws narrowly, so much so otherwise be accomplished” should a court nd the Tenth Amendment37 and was most fully that impossibility will not apply, for example, preemption via obstacle con ict and the “state articulated by the U.S. Supreme Court in New where a federal statute authorizes the sale of law must yield to the regulation of Congress.”30 York v. United States.38 ere, the Court found insurance and a state statute forbids the sale erefore, it seems that the federal govern- unconstitutional a federal statute that ordered of the same insurance.26 Recently, in Wyeth v. ment would be hard-pressed to argue that any the states to either develop their own methods Levine, the Court reminded litigants arguing state marijuana legalization laws, recreational for responsibly disposing of radioactive waste in favor of impossibility of their high burden or medical, present an obstacle to the accom- generated within state boundaries or to become in proving this “demanding defense.” It ruled plishment of either the CSA’s general goals nancially
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