Does Federal Law Preempt State Marijuana Law?

FEATURE | CANNABIS 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

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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 responsible for the presence of such that impossibility did not apply where a state or those speci c to marijuana. e Supreme waste within their borders.39 In reaching this law required a drug manufacturer to change its Court has ruled that conflicting state laws result, the Court succinctly stated that “Congress warning labels after they had been approved do not prevent accomplishment of the CSA’s may not simply ‘commandee[r] the legislative by the Food and Drug Administration, because objectives, even when the state has exempted processes of the States by directly compelling there was no evidence to suggest that the agency the behavior or a medical necessity defense is them to enact and enforce a federal regulatory would have revoked the amended warning available.31 e Supreme Court further stated program.’”40 e majority further stated that label.27 Under the holdings of Barnett Bank that where Congress legislates in an area that Congress cannot compel the states to “enforce and Wyeth, it appears that any action short of is not a “uniquely federal interest,” such as steep-slope standards, to expend any state explicitly con icting commands to act one way state police powers of arrest and narcotics funds, or to participate in the federal regulatory and also act the exact opposite way would be enforcement, an obstacle con ict has to be even program in any manner whatsoever.”41 In the enough to meet the impossibility prong. It thus more “signi cant” to reach the level required simplest terms, the anticommandeering rule appears that the federal government would have for preemption.32 provides a meaningful distinction and reminder a di cult time meeting its burden in arguing Some may argue that by enacting marijuana that “[s]tates are not mere political subdivisions for the existence of a direct con ict between legalization laws, states implicitly endorse of the United States. State governments are nei- the CSA and state marijuana laws. marijuana use and cause increased marijuana ther regional o ces nor administrative agencies Further, millions of Americans presumably consumption. While these allegations are both of the Federal Government.”42 Even under the comply with state marijuana laws every day true, such conduct does not constitute a positive more expansive power of the Commerce Clause, because no state marijuana law commands con ict under Supreme Court precedent. Congress was not allowed to require the states an individual to use, cultivate, or distribute to regulate radioactive wastes.43 marijuana. Rather, these state laws permit The Anticommandeering Rule e anticommandeering rule is broad and individuals to undertake action where the Considering the federal government’s lack of its application is not solely limited to state gov- federal government has forbidden it; thus state law enforcement resources and Congress’s ernments, as was illustrated in Printz v. United marijuana laws cannot create impossibility per vast preemptive power, it seems reasonable States.44 In Printz, the Court found that Congress

36 | COLORADO LAWYER | DECEMBER 2018 had attempted to circumvent its ruling in New York or partially repeals old laws banning sports old laws, and such actions constitute authori- by issuing orders directly to state o cers instead gambling, it ‘authorize[s]’ that activity” because zation in con ict with a preexisting federal law of to the state as an entity.45 In nding this action “all forms of sports gambling were illegal in criminalizing marijuana for private actors, it is unconstitutional, the majority held that “Congress the great majority of the States” at the time di cult to imagine how Congress could craft cannot circumvent [New York’s] prohibition by PASPA was created.56 Justice Alito, writing a regulation to invalidate those authorizations conscripting the States’ officers directly. The for the majority, stated that “[t]he concept of without unconstitutionally directly regulating Federal Government may neither issue directives state ‘authorization’ makes sense only against the legislative actions of the states.65 requiring the States to address particular problems, a backdrop of prohibition” (i.e., states don’t While no legal issue is ever set in stone and nor command the States’ o cers . . . to administer authorize everything that is not regulated or federal court decisions are subject to interpre- or enforce a federal regulatory program.”46 Indeed, prohibited, for example, brushing teeth) and tation, it would take mental gymnastics to argue the Court found this action so repugnant to the that state authorization applies only where that Murphy would allow for federal preemption Constitution that policymaking concerns and “the activity in question would otherwise be of state marijuana legalization. Further, both “case-by-case weighing of the burdens or bene ts” restricted.”57 Due to its interpretation of the New York and Printz make it particularly clear were unnecessary.47 state authorization question, the Court found that any action by Congress to force the states, In Murphy,48 the National Collegiate Athletic that PASPA “violates the anticommandeering either through governmental bodies or individual Association (NCAA) and three major profession- rule” as it “unequivocally dictates what a state o cers, to adopt or enforce the CSA—and thus al sports leagues sued New Jersey (collectively, legislature may and may not do.”58 Further, the render their legalized marijuana programs plainti s) after that state passed a bill in 2014 Court declined to adopt interpretations of the moot—would fail as an unconstitutional over- repealing state law provisions that prohibited anticommandeering doctrine espoused by the reach of Congress’ preemptory power. certain sports wagering.49 e plainti s’ cause of NCAA and United States, which could have action rested on the Professional and Amateur greatly limited the doctrine’s application. Each The Elephant in the Room: Sports Protection Act (PASPA).50 Enacted in 1992, maintained that while the Constitution denies Gonzales v. Raich PASPA makes it unlawful for states to legalize Congress the ability to “compel a State to enact By all appearances, Gonzales v. Raich66 should or facilitate sports wagering, or for individuals legislation,” it could simply “prohibit[] a State have been the nal nail in the co n for state to engage in sports wagering if a state allows from enacting new laws.”59 However, the Court medical marijuana programs, and it was indeed such activities.51 PASPA does not make sports found this argument “empty” and akin to the viewed that way by scholars.67 Following a raid gambling itself a federal crime, but allows the proverbial distinction without a di erence.60 e that led to the seizure or destruction of their Attorney General and professional and amateur majority struck PASPA in its entirety, holding marijuana plants by federal Drug Enforcement sports organizations to bring civil actions to that it served as an unconstitutional violation Agency agents, two California medical marijuana enjoin violations.52 of the anticommandeering principle and that users sued numerous federal agencies, arguing Plaintiffs argued that PASPA, in effect, no provision was severable from the whole.61 that the CSA was an unconstitutional overreach maintained the status quo because sports ough it remains to be seen how Murphy by Congress and a violation of the Commerce betting was already illegal and therefore it did will be interpreted by federal courts in the future, Clause.68 e individuals argued that that their not require New Jersey to take any action, and the decision appears to clearly support state actions in connection with marijuana were too even if the state did act, it would not constitute marijuana legalization because while describing attenuated to have any e ect on interstate com- authorization.53 New Jersey argued that PASPA why authorization logically requires regulation merce because they were growing marijuana for violates the anticommandeering principle by or prohibition, Justice Alito directly and favorably personal medicinal use at a private residence.69 preventing states from modifying or repealing compared New Jersey’s law legalizing sports The Supreme Court disagreed, holding that laws prohibiting sports gambling, because PASPA wagering to a Vermont law legalizing recre- Congress may regulate purely local activity requires states to “maintain their existing laws ational marijuana;62 the Court held that after where such activity would have a “substantial against sports gambling without alteration” and a state has legalized marijuana, participants e ect on supply and demand in the national that a state law allowing sports betting “amounts who operate within those laws are thereafter market.”70 Even growing small amounts at home to an authorization.”54 The question of state acting “pursuant to state law.”63 Second, the for the sole purpose of personal medical use authorization was heavily contested based on majority’s argument that authorization occurs qualifies, because the federal government’s New York and Printz, as both the NCAA and where a state “completely or partially repeals “failure to regulate that class of activity would United States conceded that PASPA would be old laws banning” formerly-illegal activities undercut the regulation of the interstate market unconstitutional if New Jersey’s interpretation is directly analogous to the situation faced by in that commodity.”71 were adopted by the Court.55 every state that has legalized marijuana, to Justice Stevens, writing for the majority, The Court resoundingly sided with New whatever extent.64 ird, because states have argued that the actions of even one individual Jersey, holding that when a “State completely legalized marijuana by repealing or superseding growing marijuana at her home could create a

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black market and a “high demand” for marijuana Raich now appears to be an outlier, supporting in interstate commerce, although the majority the proposition that the CSA is a constitutionally noted that Congress never made “particularized “ permissible use of Congress’s power under the ndings” regarding such small amounts.72 To Rather than Commerce Clause, and little else. the Court, Congress’s legitimate interest in prohibiting all illegal drug production and faltering, Potential Challenges to State Schemes possession was paramount, even if the “con- legalization e orts While the constitutionality of state marijuana nection to commerce is not self-evident.”73 In legalization e orts appears to be on rm con- the end, the fact that the concept of economics have ﬂ ourished, stitutional footing, certain regulatory aspects of includes “the production, distribution, and with 20 additional state marijuana regimes may be ripe for challenge consumption of commodities” was enough to and may ultimately be found to be preempted link any individual activity to the larger interstate jurisdictions by the CSA. ese include general regulatory marketplace and halt any questions about the enacting measures,85 provisions for law enforcement constitutionality of the CSA.74 officials to return marijuana and parapher- Following Raich, the outlook for existing comprehensive nalia following raids or arrests,86 state-issued legalized marijuana laws75 appeared dire, as registration cards,87 protections against private Justice O’Connor expressed in her dissent, medical marijuana discrimination and private civil sanctions,88 and which openly questioned whether the role of programs and state-run dispensaries and cultivations centers.89 states as laboratories of democracy was being extinguished by the Court’s application of federal 10 enacting Conclusion law.76 Legal scholars agreed and stated that the recreational Today, state marijuana legalization appears Raich decision would lead to large-scale pre- to be an unstoppable force, with more states emption of state medical marijuana programs.77 marijuana adopting laws every year and public sentiment And even assuming that state programs would programs since favoring legalization at an all-time high.90 Based survive for a time following the decision, their on the number and diversity of states91 adopting purpose would be frustrated without giving 2005. legalization programs, and the lack of precedent participants the ability to “assert a legal defense to support federal preemption, we are left with to prosecution under federal law.”78 the Ninth Circuit’s comments about Raich While Justice O’Connor may have been correct upon rehearing: in asserting that the majority’s opinion in Raich ” For now, federal law is blind to the wisdom represented an erosion of one of the fundamental of a future day when the right to use medical aspects of federalism, her pronouncement and marijuana to alleviate excruciating pain may the entire decision must be read in the context of on behalf of the majority, Justice Stevens stated, be deemed fundamental. Although that day the Commerce Clause, which unlike preemption, “It is beyond peradventure that federal power has not yet dawned, considering that during is a substantive power granted to Congress.79 over commerce is superior to that of the States the last ten years eleven states have legalized us, when Justice Stevens reasoned that the to provide for the welfare or necessities of their the use of medical marijuana, that day may “Supremacy Clause unambiguously provides inhabitants.”82 So clearly the question of federal be upon us sooner than expected.92 that if there is any con ict between federal and preemption of California’s—or any other state’s— Without the power of preemption, that state law, federal law shall prevail,”80 he was doing marijuana legalization laws was not before the day is likely coming much sooner than once so within the con nes of the Commerce Clause Court and was not addressed in Raich.83 thought possible. and in direct response to the plainti s’ argument Experience has shown that claims of legalized that acting in accordance with California’s laws marijuana’s downfall via Raich were greatly placed their actions “beyond the ‘outer limits’ of exaggerated. Rather than faltering, legalization Luke C. Waters provides federal, 81 state, and local tax advice to Congress’ Commerce Clause authority.” u s , e orts have ourished, with 20 additional ju- businesses operating or seeking to any argument that Raich supports preemption of risdictions enacting comprehensive medical operate in the legalized recreational state marijuana legalization laws misconstrues the marijuana programs and 10 enacting recreational and medical marijuana industry in Colorado—[email protected]. opinion, which is couched exclusively in terms marijuana programs since 2005.84 And the federal of the Commerce Clause and Congress’s intent government has yet to bring suit or join existing Coordinating Editors: Graham Gerritsen, to obviate the need for the medical necessity litigation against a state marijuana program. [email protected]; Hugh Ilenda, defense. Finally, in concluding his argument Instead of a death knell for marijuana legalization, [email protected]

38 | COLORADO LAWYER | DECEMBER 2018 NOTES 1. 1996 Cal. Legis. Serv. Prop. 215 (codifi ed as 9. Pub. L. 91-513, 84 Stat. 1236 (1970) (codifi ed 26. Id. (stating that the “two statutes do not Cal. Health and Safety Code §§ 11362.7-.85 at 21 USC §§ 801 to 971); 21 USC § 812(b)(1). impose directly confl icting duties on national (Deering 2017)). 10. See, e.g., Mass. Ann. Laws ch. 94C § 4; 35 banks—as they would, for example, if the 2. A “comprehensive” or “e ective” medical Pa. Cons. Stat. § 10231.2103; Vt. Stat. Ann. tit. 18 federal law said, ‘you must sell insurance,’ while marijuana program provides greater rights and § 4474b(a). the state law said, ‘you may not’”). protections than states where only “low-THC 11. See, e.g., Colo. Const. art. XVIII, § 14(2)(a); 27. Wyeth v. Levine, 555 U.S. 555, 571–73, 581 marijuana” has been made available and laws Or. Rev. Stat. § 475B.480; Nev. Rev. Stat. Ann. § (2009) (holding that impossibility and direct do not protect participants to an appropriate 453A.310. confl ict preemption are not implied where a degree. See Marijuana Policy Project, “State-by- state law permits or encourages an action and 12. See Colo. Dep’t of Revenue, State of State Medical Marijuana Laws: How to Remove federal law prohibits or appears to prohibit the Colorado Marijuana Taxes, Licenses, and Fees the Threat of Arrest 2015” at 9–12 (2016). See same action). Transfers and Distribution Tax Revenue from also Nat’l Conf. of State Legislatures, State August 2017 (Sept. 2017), www.colorado. 28. Freightliner Corp. v. Myrick, 514 U.S. 280, Medical Marijuana/Cannabis Program Laws at gov/pacifi c/sites/default/fi les/0817%20 287 (1995). Table 1 (Oct. 17, 2018), www.ncsl.org/research/ Marijuana%20Tax%2C%20License%2C%20 29. Crosby v. Nat’l Foreign Trade Council, 530 health/state-medical-marijuana-laws.aspx#2. and%20Fees%20Report%20PUBLISH.pdf. U.S. 363, 373 (2000). 3. See Nat’l Conf. of State Legislatures, supra 13. Mikos, “On the Limits of Supremacy: Medical 30. Id. note 2. See also 31 Legal Medical Marijuana Marijuana and the States’ Overlooked Power States and DC: Laws, Fees, and Possession 31. See generally U.S. v. Oakland Cannabis to Legalize Federal Crime,” 62 Vand. L. Rev. Limits, ProCon.org (June 26, 2017), https:// Buyers’ Coop., 532 U.S. 483, 496–99 (2001) 1421, 1445 (2009) (describing this overbroad medicalmarijuana.procon.org/view.resource. (ruling that the CSA applied to a co-op created approach to preemption doctrine as “hornbook php?resourceID=000881; Marijuana Policy to distribute marijuana under California law, law,” due to its wide acceptance, before noting Project, supra note 2. This article includes although California law exempted the co-op its incorrect application). Louisiana in this number as of 2016 due to from criminal sanctions for such actions). changes made by its legislature to existing 14. Murphy v. Nat’l Collegiate Athletic Ass’n, 138 32. Boyle v. United Techs. Corp., 487 U.S. 500, medical marijuana laws, making its program S.Ct. 1461 (2018). 507 (1988); Rice v. Santa Fe Elevator Corp., 331 comprehensive and available to the public in 15. Gonzales v. Raich, 545 U.S. 1 (2005). U.S. 218, 230 (1947). See also Cnty. of San Diego 2018. Deslatte, “Louisiana medical marijuana bill 16. U.S. Const., art. VI, cl. 2. v. San Diego NORML, 81 Cal. Rptr. 3d 461, 482 signed,” The Cannabist (May 20, 2016), www. (4th Dist. Ct. App. 2008). 17. See Schapiro, “Toward a Theory of thecannabist.co/2016/05/20/louisiana-medical- Interactive Federalism,” 91 Iowa L. Rev. 243, 33. This would be similar to the inability of marijuana-bill-signed/54539. 286–87 (2005); Nelson, “Preemption,” 86 registered medical marijuana users to sue 4. See Nat’l Conference of State Legislatures, Va. L. Rev. 225, 264 (2000) (stating that “if under many state disability anti-discrimination State Marijuana Policies Timeline, www.ncsl. a federal statute establishes a rule, and if the statutes because they are to be construed org/bookstore/state-legislatures-magazine/ Constitution grants Congress the power to consistently with the Americans with marijuana-deep-dive.aspx. establish that rule, then the rule preempts Disabilities Act (ADA), which specifi cally 5. Savage, “Administration Weighs Legal whatever state law it contradicts.”). forbids individuals who use drugs that are illegal under federal law from suing under its Action Against States That Legalized Marijuana 18. See New York v. U.S., 505 U.S. 144, provisions. 42 USC § 12114(a); James v. City Use,” The New York Times (Dec. 6, 2012), 167–68 (1992) (explaining that Congress’s of Costa Mesa, 700 F.3d 394, 397 n. 3 (9th Cir. www.nytimes.com/2012/12/07/us/marijuana- powers under the Commerce Clause are 2012) (holding that the “ADA does not protect initiatives-in-2-states-set-federal-o cials- not co-extensive with its other enumerated, medical marijuana users who claim to face scrambling.html. nonsubstantive powers). See also the discrimination on the basis of their marijuana 6. Tarm, “Ex-DEA Heads: Feds should nullify discussion in Gonzales, 545 U.S. 1. use”) (emphasis in original); Coats v. Dish Colorado and Washington pot laws,” Aurora 19. Norfolk & W.R. Co. v. Am. Train. Dispatchers Network, L.L.C., 303 P.3d 147, 149–53 (Colo.App. Sentinel (Mar. 5, 2013), www.aurorasentinel. Ass’n, 499 U.S. 117, 128 (1991). 2013) (fi nding that use of marijuana legally com/news/ex-dea-heads-feds-should-nullify- 20. Rice v. Santa Fe Elecator Corp., 331 U.S. 218, under Colorado law still violated the CSA, colorado-and-washington-pot-laws. 230 (1947). which consequently also violated Colorado’s 7. The two states, both of which border Colorado, 21. Gade v. Nat’l Solid Waste Management Ass’n, anti-disability discrimination statute, which is fi led suit jointly following the state’s legalization 505 U.S. 88, 98 (1992) (citations omitted). based on the ADA). of recreational marijuana, alleging, among other 34. Gardbaum, “Rethinking Constitutional matters, “frustration of federal drug laws” by 22. 21 USC § 903 (emphasis added). Federalism,” 74 Tex. L.Rev. 795, 797 (1996) state laws. Nebraska, et al. v. Colorado, No. 144- 23. See Kreit, “The Federal Response to (describing prevailing views of Congress’ power orig. (2016), denying motion for leave to fi le a bill State Marijuana Legalization: Room for to preempt state law). of complaint (Thomas, J., dissenting). Compromise?,” 91 Or. L. Rev. 1029, 1036–37 35. Mikos, “Preemption Under the Controlled 8. Following a successful referendum by and n. 35 (2013) (using 2010 as an example Substances Act,” 16 J. Health Care L. & Pol’y 5, voters, Arizona fi led suit in the District Court to show that federal law enforcement o cers 16 (2013). Of course, preempting all state-level of Arizona to determine whether federal law made only 0.8% of all marijuana arrests in the regulation would have drawbacks for state preempted the state’s new comprehensive United States that year); Beek v. City of Wyo., programs as it would likely lead to an end to medical marijuana law, inventing hypothetical 846 N.W.2d 531, 538 (Mich. 2014) (fi nding state prohibition against sales to minors, and state o cials who were supposedly to be that data provided by the Federal Bureau of interfere with the issuance of licenses and sued in their o cial capacities by the federal Investigation shows that 99% of all marijuana zoning requirements. Id. at 31–32. However, the government for allowing the law to be arrests are made by state, not federal, o cials) federal government might also face drawbacks, implemented. Arizona v. United States, 2012 (citing Mich. Comp. Laws Serv. § 333.26422 such as having to require states to treat U.S. Dist. LEXIS 19092 at 3–8 (D.C. Ariz. 2012). (LexisNexis 2017)). recreational marijuana use the same as medical The judge ruled the case was not ripe as there 24. 21 USC § 903. marijuana use, a trend the United States does was no “genuine threat” of prosecution by the 25. Barnett Bank, N.A. v. Nelson, 517 U.S. 25, 31 not wish to see continue. Mikos, supra note 13 federal government. Id. at 15, 18–19. Arizona (1996) (internal citations omitted). at 1451. neither appealed the ruling nor re-fi led the case.

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36. Commandeering may be viewed as the 65. See id. at 1479–1481 (holding that substance in violation of the CSA, even where inverse of preemption. While preemption preemption is based on a federal law that state law deems the substance to be legal). blocks a state from undertaking an action, regulates the conduct of private actors, not the See also id. at 45–46 (Gabriel, J., dissenting) commandeering requires a state to act, which states). (arguing that a literal reading of the majority’s is unconstitutional. See Adler and Kreimer, 66. Raich, 545 U.S. 1 (2005). holding means that any o cer distributing “The New Etiquette of Federalism: New York, narcotics in a sting operation would be actively 67. See, e.g., Somin, “Gonzales v. Raich: Printz, and Yeskey,” 1998 Sup. Ct. Rev. 71, 89–95 and knowingly violating the CSA). Federalism as a Casualty of the War on Drugs,” (1998). 15 Cornell J.L. Pub. Pol’y 507, 539–40 (2006) 87. See Garvey, “Medical Marijuana: The 37. See Hodel v. Va. Surface Mining and (concluding that Raich would e ectively Supremacy Clause, Federalism, and the Reclamation Assn., Inc., 452 U.S. 264, 286–87 strangle e orts at the state level to legislate Interplay Between State and Federal Laws” (1981). medical marijuana use and thereafter reap at 13–14 (Cong. Research Serv. R42398, Mar. 38. New York v. U.S., 505 U.S. 144 (1992). the benefi ts); Young, “Just Blowing Smoke? 6, 2012), www.votehemp.com/wp-content/ uploads/2018/09/MedicalMarijuana- 39. Id. at 150–51. Politics, Doctrine, and the Federalist Revival After Gonzales v. Raich,” 2005 Sup. Ct. Rev. SupremacyClause-CRS-R42398-2012.pdf. 40. Id. at 161 (quoting Hodel, 452 U.S. at 288). 1, 33–37 (2005); Klein, “Independent-Norm 88. As more states legalize marijuana, state 41. Id. Federalism in Criminal Law,” 90 Cal. L.Rev. 1541 laws have become increasingly protective 42. Id. at 188. (2002) (arguing, generally, that decisions such of individuals and private businesses that 43. Id. at 175. as Raich, which occurred three years later, chill partake in such programs and have begun the state laboratory of democracy and cause protecting individuals from discrimination by 44. Printz v. U.S., 521 U.S. 898 (1997). Printz independent state laws to disappear). non-state actors such as schools, employers, concerned the requirements of the Brady and landlords on the basis of registration or Handgun Violence Prevention Act, which 68. Raich, 545 U.S. at 7. participation in state marijuana programs. See, amended the Gun Control Act of 1968 to 69. Id. at 15. e.g., Del. Code Ann. 16 § 4905A(c) (forbidding require, among other unaltered federal 70. Id. at 19. The Court noted the similarities discrimination by schools, landlords, and provisions, local law enforcement o cers to between this case and the famous Commerce employers); Ark Const. Amendment 98 § perform background checks against individuals Clause case Wickard v. Fillburn, 317 U.S.111 3(f)(3)(A) (forbidding discrimination in seeking to purchase fi rearms. Id. at 902–04. (1942), and used the Wickard as the basis employment decisions); Ariz. Rev. Stat. § 36- See also Pub. L. 103-159, 107 Stat. 1536 (1993). for much of its opinion. Id. at 17–19 (internal 2813(A) (forbidding discrimination by schools 45. Printz, 521 U.S. at 935. citation omitted). and landlords). See also Mikos, supra note 13 at 46. Id. 71. Id. at 18. 1456–57. 47. Id. 72. Id. at 19–21. 89. See U.S. v. Rosenthal, 454 F.3d 943, 948 48. The NCAA was joined by the “major 73. Id. at 21. (9th Cir. 2006); Cnty. of Santa Cruz v. Ashcroft, 279 F.Supp.2d 1192, 1211–12 (N.D. Cal. 2003), professional sports leagues” in fi ling the case. 74. Id. at 25–26 (internal citations omitted). Murphy, 138 S.Ct. 1461. The United States fi led rev’d on other grounds, 314 F.Supp.2d 1000 75. At the time of the decision, only 10 states an amicus brief on behalf of the NCAA and (N.D. Cal. 2004). had comprehensive medical marijuana the Court addressed the two simultaneously 90. Recent polling suggests 61% of Americans programs. See supra note 3. throughout much of the majority opinion. Id. at support legalizing marijuana for any use, while 1473–1474. 76. Id. at 42–43 (O’Connor, J., dissenting). 88% support legalizing it for medical purposes. BAR CENTER 49. Id. at 1472. 77. See Mikos, supra note 13 at 1438–39, nn. De Pinto et al., “Marijuana Legalization 72–73 (citing examples of scholarly reactions 50. Id.; Pub. L. 102-559, 106 Stat. 4228 (1992). Support at All-Time High,” CBS News (Apr. 20, stating that state medical marijuana programs 2017), www.cbsnews.com/news/support-for- 51. 28 USC § 3702. But PASPA grandfathered in were doomed and would be preempted). marijuana-legalization-at-all-time-high. four states where the practice had previously 78. LeVay, “Urgent Compassion: Medical been legalized: Delaware, Montana, Nevada, 91. As of 2017, states in all geographic areas Marijuana, Prosecutorial Discretion and The and Oregon. PASPA would have allowed New of the country have adopted comprehensive Medical Necessity Defense,” 41 B.C. L.Rev. 699, Jersey to set up a sports gambling scheme medical marijuana programs, including 714 (2000). within a year of its enactment, but New Jersey normally conservative or swing states such as failed to act within that window and instead 79. See Nelson, supra note 15 at 277 and Arkansas, Florida, Louisiana, and West Virginia. waited almost 20 years to enact its law. Murphy, 298–303, n. 171. See supra note 3. 138 S.Ct. 1469. 80. Raich, 545 U.S. at 29. 92. Raich v. Gonzalez, 500 F.3d 850, 866 (9th 52. Murphy, 138 S.Ct. 1469. 81. Id. at 28 (quoting id. at 42 (O’Connor, J., Cir. 2007). 53. Id. at 1473–74. dissenting)). 54. Id. at 1473. 82. Id. at 29 (internal quotations omitted) (emphasis added). 55. Id. 83. Id. at 8–9. 56. Id. at 1474. 84. See supra notes 3–4. 57. Id. 85. See supra note 35. 58. Id. at 1478. 86. Compare N.M. Stat. Ann. § 26-2B-4(G) 59. Id. The groups argued this because, in their and Mikos, supra note 13 at 1459–60 (arguing estimation, New York and Printz described that returning illegally seized marijuana and only “a rmative” commands from Congress paraphernalia “merely restores the state of and prohibitions were not forbidden by those nature” and should not be subject to the rulings. Id. doctrine of preemption, though he admits that 60. Id. there are as yet “no satisfactory answers”) 61. Id. at 1478–1481. with People v. Crouse, 388 P.3d 39, 42–43 62. Id. at 1474 and n. 28. (Colo. 2017) (en banc) (holding that section 14(2)(e) of Colorado’s medical marijuana code 63. Id. is unconstitutional as enacted as it requires 64. Id. state o cials to return a federally-controlled