Medical Marijuana in Colorado and the Future of

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Medical Marijuana in Colorado and the Future of
Marijuana Regulation in the United States
Sam Kamin*
I. INTRODUCTION
My contribution to this special issue will describe the phenomenon of
Colorado’s medical marijuana industry and speculate about what Colorado can
tell us about the future of marijuana regulation in the United States. I have had an
opportunity to interview more than twenty players in this industry—including
law enforcement officials, activists, lawyers, and dispensary owners—over the
last year and to speak informally with a great many more. Based on these
discussions and other research that I have done on the emergent industry in my
state, this article describes how the industry has grown in Colorado since 2008,
puts this transformative change into perspective, and then draws some tentative
conclusions about the future of drug policy in the United States, the appropriate
federal–state balance in this area, and the relationship between criminal laws and
broader societal norms.
II. THE EXAMPLE OF COLORADO
1
In 2000, Colorado voters approved an amendment to the state constitution
providing an affirmative defense to a charge of marijuana possession for
2
approved medical marijuana patients and their designated caregivers.
Amendment XX requires those seeking to register as marijuana patients to
demonstrate a diagnosed, debilitating condition and to receive a doctor’s advice
3
that they might benefit from the medicinal use of marijuana.
* Professor and Director, Constitutional Rights and Remedies Program, University of Denver, Sturm
College of Law. I would like to thank the organizers of this conference for inviting me to participate and for
giving me the opportunity to learn from the diverse and impressive collection of panelists who were assembled
for this weekend at McGeorge.
1. This section is adapted from a shorter section in Sam Kamin, The Challenges of Marijuana Law
Reform, in THE IMPACT OF THE DECRIMINALIZATION AND LEGALIZATION OF MARIJUANA 6 (2011).
2. Id. COLO. CONST. art. 18, §14(2)(b) (“it shall be an exception from the state’s criminal laws for any
patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the
medical use of marijuana . . . .”).
3. Id. § 14(2)(a). The term “advice” is carefully chosen. While the Food and Drug Administration may
determine what drugs may and may not be prescribed by the physicians it licenses, its power to control what is
discussed between doctors and patients is limited. In Conant v. Walters, the Ninth Circuit Court of Appeals held
that a doctor could not, consistent with the First Amendment, be prohibited from recommending marijuana to
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After designating a caregiver and receiving a medical user card from the
state, both the patient and the caregiver have a defense to a state prosecution for
possession of a specified amount of marijuana. While not immune from search
and arrest, a registered caregiver or patient cannot be convicted under the state’s
4
marijuana laws if her possession is consistent with legitimate medical use. While
the Colorado amendment is clear on these points, there are a number of
particulars on which its lack of clarity made it something of a dead letter for the
first eight years of its existence.
Principal among the ambiguities inherent in the measure was the nature of
the patient–caregiver relationship. Following the passage of Amendment XX, the
State Department of Public Health enacted a limit of five patients who could be
associated with any particular caregiver, making the wide-scale distribution of
medical marijuana practically impossible. This limit was overturned in a 2007
lawsuit claiming that the decision had been made without sufficient public
5
involvement. When a public hearing was scheduled in 2009 to consider a return
to the five-patient limit, hundreds of patients, caregivers, and activists showed up
to oppose the rule; after nearly twelve hours of testimony, the board rejected by a
vote of six to three any limit on the number of patients any single caregiver could
6
service.
her patients. 309 F.3d 629 (9th Cir. 2002). In states that have permitted medical marijuana’s use, a doctor’s
advice or recommendation—as opposed to prescription—is something of a constant.
4. COLO. CONST. art. 18, § 14(2)(e). The Colorado statute also makes express provision for the return of
medical marijuana seized by law enforcement that is later found to have been lawfully possessed.
Any property interest that is possessed, owned, or used in connection with the medical use of
marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while
in the possession of state or local law enforcement officials where such property has been seized in
connection with the claimed medical use of marijuana. Any such property interest shall not be
forfeited under any provision of state law providing for the forfeiture of property other than as a
sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense.
Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or
primary care-giver in connection with the claimed medical use of marijuana shall be returned
immediately upon the determination of the district attorney or his or her designee that the patient or
primary care-giver is entitled to the protection contained in this section as may be evidenced, for
example, by a decision not to prosecute, the dismissal of charges, or acquittal.
Id. This provision has led to the previously unimaginable result of police returning smokeable marijuana, plants,
and growing equipment to those from whom it was seized. See John C. Ensslin, Judge Rules Police Must Return
39 Marijuana Plants to Couple, ROCKY MOUNTAIN NEWS (Nov. 27, 2007), http://www.rockymountainnews.
com/news/2007/nov/27/judge-rules-police-must-return-39-marijuana-plants/ (on file with the McGeorge Law
Review).
5. Howard Pankratz, Judge Suspends Pot-Patient Policy, DENVER POST (July 4, 2007), http://www.
denverpost.com/search/ci_6293080 (on file with the McGeorge Law Review).
6. Claire Trageser, Health Board Rejects Key Medical Marijuana Changes, DENVER POST (July 20,
2009), http://www.denverpost.com/breakingnews/ci_12879779 (on file with the McGeorge Law Review);
Phillip Smith, Feature: Colorado Medical Marijuana Supporters Defeat Effort to Restrict Caregivers,
Dispensaries, STOPTHEDRUGWAR.ORG (July 25, 2009), http://stopthedrugwar.org/chronicle/2009/jul/25/
feature_colorado_medical_marijua (on file with McGeorge Law Review).
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Along with the electoral victory of Barack Obama the previous fall, the
failure of the state to impose any limits on the number of patients each caregiver
could serve was seen as an opportunity by those anxious to set up for-profit
marijuana businesses. Despite deep ambiguity regarding whether Amendment
7
XX envisioned or permitted these for-profit dispensaries and the fact that any
8
sale of marijuana remained a serious federal felony, in just a few months the
number of these businesses in Colorado went from a few dozen to several
9
hundred. It was widely reported that Denver suddenly had more marijuana
10
dispensaries than Starbucks. A Wild West mentality ruled the day—stories
abounded of out-of-state financiers flying into Denver with bags of money,
11
seeking to open a dispensary over the weekend.
Despite the numbers widely published in the press, it is impossible to know
exactly how many dispensaries actually sprung up during 2009; because there
was literally no regulation of the burgeoning industry—not at the local level, not
at the state level, and certainly not at the federal level—it is not possible to know
12
exactly how many dispensaries actually opened their doors during this period.
What was knowable during this period was the number of registered marijuana
patients registering with the state. The state’s Department of Public Health and
Welfare was charged with issuing medical marijuana licenses during this time
and regularly reported general information on the number of applications
received and approved; as Figure 1 demonstrates, this number climbed more than
ten-fold between January of 2009 and May of 2010. During this fifteen-month
period, the number of registered marijuana users in the state climbed from fewer
13
than 10,000 to more than 100,000. The sheer volume of patient applications
coming in during this period swamped the department, which was often running
several months behind in the processing of applications.
7. The amendment mentions caregivers, but not dispensaries. COLO. CONST. art. 18, §14(2)(d) It does, as
dispensary owners are quick to point out, discuss the dispensing of marijuana. See id. (“Notwithstanding the
foregoing provisions, no person, including a patient or primary care-giver, shall be entitled to the protection of
this section for his or her acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or
transportation of marijuana for any use other than medical use.”).
8. See discussion infra Part III.
9. Christopher N. Osher, Pot Capital, U.S.A., DENVER POST (Jan 3, 2010) http://www.denverpost.com/
news/ci_14112792 (on file with the McGeorge Law Review).
10. Id.
11. See Erica Meltzer, Medical Marijuana Industry’s Growth Spurs Backlash, COLORADODAILY.COM
(Nov. 14, 2009), http://www.coloradodaily.com/ci_13789999#axzz1PLWUdM1Z (on file with the McGeorge
Law Review).
12. A subject I interviewed stated that in the early days, so little was known about the extent of the
industry that his department looked to advertisements in the free Denver weekly Westword in order to find out
where the dispensaries were located.
13. See The Colorado Medical Marijuana Registry, COLO. DEPARTMENT OF PUB. HEALTH AND SAFETY
(June 31, 2011), http://www.cdphe.state.co.us/hs/medicalmarijuana/statistics.html (on file with McGeorge Law
Review) (reporting that as of June 31, 2011, the last time the public list was updated, the number of approved
marijuana licenses stood at over 128,000).
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Medical Marijuana Applications in Colorado
120000
Number
100000
80000
60000
monthly
40000
total
20000
Jan-04
Jun-04
Nov-04
Apr-05
Sep-05
Feb-06
Jul-06
Dec-06
May-07
Oct-07
Mar-08
Aug-08
Jan-09
Jun-09
Nov-09
Apr-10
0
The Wild West attitude that typified the industry during this period led to
howls for reform or at least regulation of the booming marijuana industry.
Women in bikinis parading on busy boulevards with sandwich boards advertising
“$5 joints” and the appearance of “medical” marijuana dispensaries with names
like “Daddy Fat Sacks” and “DrReefer.com” led many to believe that the term
“medical” was little more than political cover for the full legalization of
recreational marijuana use. When it was revealed that just fifteen Colorado
doctors accounted for more than seventy-five percent of all medical marijuana
recommendations (and that just five doctors accounted for more than half),
14
criticism of the status quo only intensified.
In the spring of 2010, the Colorado legislature debated two competing
regulatory models to address the perceived problems with the burgeoning
medical marijuana industry. Dubbed the industry bill and the law enforcement
bill, the two alternatives had very different visions for the future of medical
marijuana in Colorado. Simply put, the law enforcement bill would have put the
dispensaries out of business. Among other things, it would have limited
marijuana caregivers to five patients each, essentially crippling the for-profit
15
dispensary model that then existed. The industry bill, by contrast, would largely
have endorsed the status quo; it would have allowed dispensaries to stay in
business while imposing a moratorium on the opening of any new dispensaries.
In this way, the industry bill was a tremendous boon to those who entered the
14. John Ingold, 15 Colorado Doctors Make 75 Percent of Medical Pot Recommendations, DENVER
POST (Aug. 30, 2009), http://www.denverpost.com/ci_13231783 (on file with the McGeorge Law Review).
15. Dispensary advocates argued that this limit would be akin to limiting each liquor store or pharmacy
to only five patients.
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medical marijuana business first; it created barriers to entry and clarified the
legality of those dispensaries already in business.
After heavy lobbying from industry groups, law enforcement, and drug
treatment professionals, Colorado lawmakers passed SB 1284, a modified
version of the industry bill which created a statewide apparatus for the licensing
16
of the marijuana industry. For the first time in the United States, and perhaps the
world, a state regulatory regime was put in place to oversee the commercial sale
of marijuana. If a dispensary owner met the law’s requirements (including state
residency and, controversially, a clean criminal record) she could receive
permission from the state to sell marijuana for profit. In an explicit battle
between law enforcement and the nascent commercial drug industry in Colorado,
the industry won—the drug-dealers trounced the drug-warriors.
Why, exactly, did the medical marijuana industry take off when it did in
Colorado? And how did those seeking to sell marijuana prevail politically over
those charged with protecting the public from the scourge of illicit drugs? As I
have written elsewhere:
An oft-repeated explanation is that the bad economy and the
attendant reduced tax base of the late 2000s made the legalization and
taxation of medical marijuana attractive to legislatures and local
17
governments looking for alternative sources of revenue. Furthermore,
widespread commercial vacancies and bankruptcies made landlords and
lenders more willing to deal with those operating at the fringes of
legality. Finally, the election of Barack Obama in late 2008 was seen by
almost everyone in the emerging marijuana industry as a harbinger of a
18
change in federal marijuana policy.
As this article discusses below, the President has taken a much more
nuanced—and often overtly hostile—policy than legalization advocates might
have hoped.
III. MARIJUANA AND THREE-LEVEL FEDERALISM
Nearly every human activity in this country is regulated to some degree at
three different levels of government—federal, state, and local. What is
extraordinary about the current state of medical marijuana in the United States
today, however, is the disparity in the way the subject is treated at these three
16. COLO. REV. STAT. ANN. §§ 12-43.3-101 to 901 (West 2010).
17. Kamin supra note 1, at 10. In interviews, those in the industry repeatedly stated their willingness to
deal with state regulation and taxation. Dispensary owners believe that once revenue from marijuana sales is
budgeted by the state government it will make it difficult, if not impossible, for the state to wean itself from
marijuana revenue.
18. Id.
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different levels—it is seen as a serious felony (albeit an under-enforced one) at
the federal level, as something akin to a constitutional right at the state level, and
as either a nuisance to be regulated or as a tax source to be exploited at the local
level. No other issues of the day—not abortion, not alcohol, not prostitution, not
gambling, not health care—is treated quite so disparately by those various
government entities that regulate it. This section investigates this complicated
dynamic, explaining the tensions it creates before turning to some tentative
predictions about the future of marijuana regulation in the United States.
A. The State–Federal Junction
1. Medical Marijuana Today
As of the summer of 2011, nearly one-third of states plus the District of
19
Columbia now have medical marijuana provisions on their books. Most of these
provisions are similar to Colorado’s, allowing a doctor’s diagnosis and
recommendation to qualify one for an exemption from enforcement of the state’s
marijuana prohibition laws. This increased willingness of the states to experiment
with alternative ways of regulating cannabis stands in strong contrast to the total
prohibition on marijuana that has existed at the federal level for more than three20
quarters of a century. Under the Controlled Substances Act (CSA) the federal
government continues to treat marijuana as a Schedule I narcotic—one that
cannot be prescribed by any physician licensed by the Food and Drug
21
Administration—and to treat its distribution or manufacture as a serious felony.
Although there have been legislative attempts to repeal this classification and to
permit marijuana to be prescribed or recommended for patients, these attempts
22
have all failed. Furthermore, in 2005, the Supreme Court reaffirmed the power
19. ALASKA STAT. §§ 17.37.010–.080 (2010); ARIZ. REV. STAT. ANN. §§ 36-2801 to 2819 (2009); CAL.
HEALTH & SAFETY CODE §§ 11362–11362.9 (West 2007); COLO. CONST. art. 18, § 14; HAW. REV. STAT. §§
329-121 to 128 (Supp. 2009); ME. REV. STAT. ANN. tit. 22, §§ 2421–2430 (Supp. 2010); MICH. COMP. LAWS
ANN. §§ 333.26421–.263430 (West Supp. 2011); MONT. CODE ANN. §§ 50-46-101 to 210 (2009); NEV. REV.
STAT. §§ 453A.010–.810 (2003); N.J. STAT. ANN. §§ 24:6I-1 to 2 (Supp. 2011); N.M. STAT. ANN. §§ 26-2B-1
to 7 (2007); OR. REV. STAT. §§ 475.300–375 (2009); R.I. GEN. LAWS §§ 21-28.6-1 to .7-1 (Supp. 2010); VT.
STAT. ANN. tit. 18, §§ 4472–4474d (2010); WASH. REV. CODE ANN. §§ 69.51A.005–.901 (West 2007 & Supp.
2011).
20. See, e.g., Kamin, supra note 1, at 6 (“Marijuana has remained a prohibited substance since the
1930’s”); Michael Vitiello, Proposition 215: De Facto Legalization of Pot and the Shortcomings of Direct
Democracy, 31 U. MICH. J. L. REFORM 707, 757 (1998) (describing the sordid history of marijuana’s initial
criminalization in the United States); Ruth C. Stein & J. Herbie Di Fonzo, The End of the Red Queen’s Race:
Medical Marijuana in the New Century, 27 QUINNIPIAC L. REV. 673, 678 (2009) (suggesting that as more states
lessen restraints on marijuana use, vigorous opposition by the federal government will increase).
21. 21 U.S.C. §§ 801–952 (2006); see 21 U.S.C.A § 812(a)(1) (West Supp. 2011) (defining Schedule I.
drugs as those with a high potential for abuse, without currently accepted medical use and for which “there is a
lack of accepted safety for use of the drug . . . under medical supervision”).
22. See 153 CONG. REC. H8483–84 (daily ed. July 25, 2007) (Congressional debate of the Hinchey–
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of Congress to regulate marijuana under the Commerce Clause—even if that
23
marijuana is grown in a state for sale and use wholly within that state.
Barring an unlikely policy change by Congress, therefore, every sale of
marijuana in every state with a medical marijuana provision on the books will
continue to constitute a serious federal crime. While states can choose not to
enforce their own criminal laws against those providing or using marijuana for
medical purposes and can choose not to enforce any federal law with which they
disagree, they cannot legalize marijuana outright. No matter how beneficently a
state views the medical use of marijuana, its use (as well as its cultivation and
provision) remains illegal in the eyes of the federal government.
What is more, it is now clear that compliance with a state medical marijuana
provision is not a defense in a federal prosecution under the CSA. Even in those
states that have made marijuana possession by certain persons for certain
purposes legal, the federal government retains the power to enforce federal drug
24
laws against those very persons. This position was clarified in 2001 when the
United States Supreme Court held that there is no medical necessity exception
implied in the CSA and that a defendant in a federal prosecution is essentially
25
barred from even raising medicinal use or compassionate motives as a defense.
There was hope among those in the medical marijuana community that the
election of Barack Obama in 2008 would change this enforcement dynamic.
When running for president, Obama at least hinted that he would change the way
the nation’s drug laws, principally the regulation of marijuana, are enforced.
Playing to the youth vote that was such an integral part of his campaign,
candidate Obama repeatedly intimated that his administration would at least
deemphasize the enforcement of federal marijuana laws in those states where
voters had approved its medicinal use.
His endorsement was cagey, however. In one interview, Obama appeared to
say that the use of marijuana was appropriate to treat cancer and other diseases,
26
but he then backtracked just as quickly. While endorsing the use of marijuana to
treat some conditions because he viewed it is no different than morphine or any
other drug, Obama went on to say that he would not approve of “mom and pop”
27
stores selling marijuana or people “growing their own.” He further stated that,
although he might be sympathetic to changing the nature of the federal
Rohrabacher Amendment). Kamin supra note 1, at 6–7.
23. Gonzales v. Raich, 545 U.S. 1, 2 (2005).
24. See infra note 29.
25. United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 491 (2001).
26. Interview by Gary Nelson with Barack Obama, then-Democratic presidential primary candidate, in
Bedford, Or. (Mar. 22, 2008), available at http://www.youtube.com/ watch?v=Ad9whO0VwKk (on file with
McGeorge Law Review).
27. Id.
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regulation, the chances of it being a high priority in his administration were
28
virtually zero.
Under President Obama, the Justice Department of Attorney General Eric
Holder has continued this string of mixed signals regarding his department’s
enforcement of federal marijuana laws. On October 19, 2009 a Justice
Department memorandum written by David W. Ogden stated that “[t]he
Department of Justice is committed to the enforcement of the Controlled
Substances Act in all states. Congress has determined that marijuana is a
dangerous drug, and the illegal distribution and sale of marijuana is a serious
crime and provides a significant source of revenue to large-scale criminal
29
enterprises, gangs, and cartels” However, the very same memo stated that going
after those who are in clear and unambiguous compliance with state medical
30
marijuana provisions would be an inefficient and poor use of federal resources.
As a general matter, pursuit of [Departmental] priorities should not
focus federal resources in your States on individuals whose actions are in
clear and unambiguous compliance with existing state laws providing for
the medical use of marijuana. For example, prosecution of individuals
with cancer or other serious illnesses who use marijuana as part of a
recommended treatment regimen consistent with applicable state law, or
those caregivers in clear and unambiguous compliance with existing state
law who provide such individuals with marijuana, is unlikely to be an
31
efficient use of limited federal resources.
Of course, as we have seen, the line between commercial and medical use of
marijuana is hardly a bright one. In Colorado, California, and other medical
marijuana states, marijuana is both medicinal (at least in name) and commercial.
While medical marijuana advocates seized on Obama’s campaign statements and
selected portions of the Ogden memo as evidence of a hands-off policy with
regard to those in the medical marijuana industry, the truth has proven
significantly more complicated.
This became clear when the Justice Department released a new marijuana
enforcement memo in the summer of 2011. This memo sought to clarify the
tension between the permission seemingly granted to medical use and the
government’s continued opposition to the commercial cultivation and sale of the
drug. If the Ogden memo created confusion on this point, the 2011 memo sought
to dispel it:
28. Id.
29. See Memorandum from David W. Ogden, Deputy Att’y Gen., to selected U.S. Att’ys (Oct. 19, 2009)
[hereinafter Ogden Memo], available at http://www.justice.gov/ opa/documents/medical-marijuana.pdf (on file
with the McGeorge Law Review).
30. Id. at 1–2.
31. Id.
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The Department’s view of the efficient use of limited federal
resources as articulated in the Ogden Memorandum has not changed.
There has, however, been an increase in the scope of commercial
cultivation, sale, distribution, and use of marijuana for purported medical
purposes. For example, within the past 12 months, several jurisdictions
have considered or enacted legislation to authorize multiple large-scale,
privately-operated industrial marijuana cultivation centers. Some of these
planned facilities have revenue projections of the millions of dollars
based on the plant cultivation of tens of thousands of cannabis plants.
The Ogden Memorandum was never intended to shield such
activities from federal enforcement action and prosecution, even where
those activities purport to comply with state law. Persons who are in the
business of cultivating, selling, or distributing marijuana, and those who
knowingly facilitate such activities, are in violation of the Controlled
Substances Act, regardless of state law. Consistent with the resource
constraints and the discretion you may exercise in your district, such
persons are subject to federal enforcement action, including potential
prosecution. State laws or local ordinances are not a defense to civil
enforcement of federal law with respect to such conduct, including
enforcement of the CSA. Those who engage in transactions involving the
proceeds of such activity may also be in violation of federal money
32
laundering statutes and other federal financing laws.
Any doubt that remained after the issuance of the 2011 memo regarding the
federal government’s continued distaste for the medical marijuana industry was
removed on October 7, 2011, when California’s four United States Attorneys
jointly announced that a federal grand jury had returned indictments against
several dispensary owners throughout the state, charging them with violations of
33
the CSA. What is more, the U.S. Attorneys sent cease-and-desist letters to a
number of dispensaries around the state, giving them forty-five days to close
34
their operations or face prosecution as well. Perhaps even more ominously for
the industry, the U.S. Attorneys revealed that they had sent letters to the
landlords of a number of dispensaries, requiring them to evict their tenants or
35
face the civil forfeiture of their property. Through these actions, the U.S.
32. Memorandum from James M. Cole, Deputy Att’y Gen., to U.S. Att’ys (June 29, 2011) [hereinafter
Cole Memo], available at http://www.aclu.org/files/drugpolicy/june_2011_guidance_regarding_medical_
mariju.pdf (on file with the McGeorge Law Review).
33. See, e.g., Feds Warn, Indict California Medical Marijuana Dispensary Operators, KABC-TV L.A.,
Oct. 7, 2011, http://abclocal.go.com/kabc/ story?section=news/state&id=8383655 (on file with the McGeorge
Law Review) (describing recent federal law enforcement actions against California marijuana dispenseries).
34. Id.
35. Id.
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Attorneys made unmistakably clear that they were willing to use both the
criminal and civil tools of the CSA against the medical marijuana industry.
What is more, the federal attack on medical marijuana appears to be coming
from all directions at once: The Internal Revenue Service has recently announced
that companies in the business of dispensing medical marijuana may not deduct
36
their business expenses as other business do and has sought to collect back taxes
37
from those it believes wrongfully claimed deductions in violation of this policy.
In addition, the Bureau of Alcohol, Tobacco, and Firearms sent a letter in
September 2011 to all licensed firearms dealers, instructing them that all licensed
38
marijuana patients were prohibited under federal law from obtaining firearms.
39
At least one state’s attorney general has criticized the ban. A Nevada woman
has challenged the ban in federal court after being denied a handgun she sought
for self-protection because the seller was aware that she was a medical marijuana
40
patient. Coupled with the refusal of an increasing number of banks to do
business with those in the industry (concerned, perhaps by the Justice
Department’s invocation of the specter of money-laundering charges against
those who do business with marijuana dispensaries), it is becoming harder and
harder for marijuana businesses to continue to do business at all.
Thus, 2011 proved to be something of a slow-motion assault on the medical
marijuana industry. Although it has always reserved the power to do so, the
Justice Department has not simply swept into dispensaries, seizing marijuana,
cash, and property. Instead, the government has moved slowly and on many
fronts—it has announced its power to pursue marijuana dispensaries and has
taken on the industry civilly, criminally, and through tax laws and firearm
36. Letter from Andrew J. Keyso, Deputy Assoc. Chief Counsel, IRS, to Congressman Barney Frank et
al., U.S. House of Reps. (Dec. 10, 2010), available at http://ww.irs.gov/pub/irs-wd/11-0005.pdf (on file with the
McGeorge Law Review) (“Section 280E of the Code disallows deductions incurred in the trade or business of
trafficking in controlled substances that federal law or the law of any state in which the taxpayer conducts the
business prohibits.”).
37. Al Olson, IRS Ruling Strikes Fear in Medical Marijuana Industry, MSN.COM, Oct. 5, 2011,
http://bottomline.msnbc.msn.com/_news/2011/10/04/8153459-irs-ruling-strikes-fear-in-medical-marijuanaindustry (on file with the McGeorge Law Review) (quoting a target of IRS enforcement as saying: “I see only
two outcomes here: Either this IRS assessment has to change or we go out of business. There really isn’t a
middle ground for us.”).
38. Open Letter from Arthur Herbert, Ass’t Dir., Enforcement Programs & Servs., ATF, to All Federal
Firearms Licensees (Sep. 21, 2011), available at http://www.nssf.org/share/PDF/ATFOpenLetter092111.pdf
(on file with the McGeorge Law Review) (“[A]ny person who uses or is addicted to marijuana, regardless of
whether his or her state has passed legislation authorizing marijuana use for medical purposes, is an unlawful
user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or
ammunition.”).
39. Matt Volz, Montana Objects to Gun Ban for Medical Pot Users, ASSOCIATED PRESS, Oct. 3, 2011,
available at http://www.chron.com/news/article/Montana-objects-to-gun-ban-for-medical-pot-2200714.php (on
file with the McGeorge Law Review).
40. Steve Green, Nevada Woman Fighting Federal Ban on Medical Pot Users Owning Firearms, VEGAS
INC, Oct. 18, 2011, http://www.vegasinc.com/news/2011/oct/18/nevada-woman/ (on file with the McGeorge
Law Review).
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regulation. Perhaps most importantly, it has pursued not just those in the business
of manufacturing and distributing marijuana, but also those legitimate businesses
41
doing business with them. As the U.S. Attorney for the Eastern District of
California stated at a press conference on the indictments: “Our intention is not to
prosecute everybody [selling medical marijuana] in the state; our intention is to
42
get people’s attention in order to deter this activity.” And the truth is that the
Feds need not throw every marijuana dispenser in jail; the slow, steady squeeze
the federal government is imposing on the industry now may kill it just as
effectively.
2. The Coming Fight over Full Legalization
The confusion and conflict over the legal status of the medical marijuana
industry has led many to call for the full legalization of marijuana. A number of
states, most recently California through Proposition 19, have considered
legalizing marijuana not just for those claiming a medical need for the drug, but
for all adults interested in partaking of the drug for either medical or recreational
purposes.
However, the federalism concerns regarding full legalization are, if anything,
more pronounced than with regard to medical marijuana. In contrast to the
uncertainty surrounding the federal government’s views on medical marijuana in
the states, the federal government’s opposition to the full legalization of
marijuana at the state level has been both consistent and full-throated. Attorney
General Holder made the government’s position explicit during the run-up to the
43
California’s vote on Proposition 19 in 2010. Responding to a letter from a
number of previous DEA administrators asking him to take a stand against the
measure, Holder wrote that Proposition 19 would “greatly complicate federal
drug enforcement efforts to the detriment of our citizens . . . . Accordingly, we
will vigorously enforce the CSA against those individuals and organizations that
possess, manufacture, or distribute marijuana for recreational use, even if such
44
activities are permitted under state law.” With recreational marijuana
41. Although one statement by a United States Attorney seemed to indicate that a crackdown on media
outlets selling advertising to the marijuana industry was the next enforcements step, subsequent statements have
backed away from that position. Michael Montgomery, Feds to Targe Radio, Newspapers for Medical
Marijuana Ads, CALIFORNIA WATCH, Oct. 12, 2011, http://californiawatch.org/dailyreport/feds-target-radionewspapers-medical-marijuana-ads-13049 (on file with the McGeorge Law Review).
42. Peter Hecht, Feds Crack Down on California’s Medical Pot Dispenseries, SACRAMENTO BEE, Oct.
8, 2011, http://www.mcclatchydc.com/2011/10/08/126588/feds-crack-down-on-californias.html (on file with
the McGeorge Law Review).
43. John Hoeffel, Holder Vows Fight Over Prop 19, L.A. TIMES (Oct. 16, 2010), http://articles.
latimes.com/2010/oct/16/local/la-me-marijuana-holder-20101016 (on file with the McGeorge Law Review).
44. Eric H. Holder, Jr., Letter to Former Administrators of the Drug Enforcement Administration,
SCRIBD.COM (Oct. 13, 2010), http://www.scribd.com/doc/39415470/Holder-letter-on-California-Pot-Prop-19
(on file with the McGeorge Law Review).
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legalization sure to be on the ballot in Colorado in 2012, the push for full
legalization is likely only to exasperate the complicated federal–state relationship
again.
3. The Power of Congress to Preempt State Marijuana Laws
What, then, is the appropriate division of authority between the state and
federal governments with regard to marijuana laws? The fate of the states’
marijuana regulations depends in large part on the preemptive effect that the
courts read into federal drug regulations under the CSA. It is generally presumed
46
that the power of Congress to preempt inconsistent (or even consistent) state
statutes is co-extensive with its power to regulate in a given area. That is, it is
generally agreed that any topic that Congress may validly regulate, it may also
47
preempt. Furthermore, the Supreme Court has made clear that, in every
instance, preemption is a question of legislative intent; when considering the
preemptive effect of a piece of legislation regulating a particular topic, a court
must determine whether and to what extent Congress intended to preempt state
48
laws on that subject.
Since the Supreme Court has determined that the regulation of marijuana is a
49
permissible congressional action under the Commerce Clause, it follows that
Congress may preempt the field of marijuana regulation by prohibiting all state
regulation of marijuana, including even those state criminal laws that closely
45. Kristen Wyatt, Colorado Pot Advocates Turn to 2012 Ballot Measure, CBS DENVER (May 15,
2011), http://denver.cbslocal.com/2011/05/15/colorado-pot-advocates-turn-to-2012-ballot-measure/ (on file
with the McGeorge Law Review) (“Marijuana advocates racked up big wins in this year’s session of the
Colorado Legislature. Now they’re turning their sights to a bigger effort—full legalization on the 2012 ballot.”).
46. It is important to remember that Congress may choose to prohibit even those state laws that do not
conflict with federal law. For example Congress may decide that it is better to have a single set of laws in some
areas—patent, foreign affairs, etc.—where a single set of rules is deemed as important as a single voice.
47. Robert A. Mikos, On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked
Power to Legalize Federal Crime, 62 VAND. L. REV. 1421, 1445–46 (2009) (“It is hornbook law that Congress
may preempt any state law that obstructs, contradicts, impedes, or conflicts with federal law. Indeed, it is
commonly assumed that when Congress possesses the constitutional authority to regulate an activity, it
may preempt any state law governing that same activity. Given that there are so few limits on Congress’s
substantive powers, there would seemingly be no limit to its preemption power either.”). Professor Mikos
argues, however, that Congress’s power is not in fact co-extensive with its regulatory power. The anticommandeering doctrine, he argues, precludes the federal government from forcing the states either to enforce
federal statutes with which they disagree or to pass statutes consistent with federal policy. And this is true as far
as it goes, but it only goes so far. The fact that the federal government can neither prevent a state from passing
laws inconsistent with the CSA nor force it to repeal any laws on its books says little about the power of
Congress to defeat state attempts to legalize some uses of marijuana within its borders. Id. at 1446–47.
48. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (“[O]ur analysis of the scope of the statute's preemption is guided by our oft-repeated comment . . . that ‘[t]he purpose of Congress is the ultimate touchstone’
in every pre-emption case.” (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963))); Viva! Int’l
Voice for Animals v. Adidas Promotional Retail Operations, Inc., 41 Cal.4th 929, 935 (2007) (“Pre-emption
fundamentally is a question of congressional intent . . . .”).
49. Gonzales v. Raich, 545 U.S. 1, 22 (2005).
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track the CSA. However, Congress has explicitly disclaimed an intention to do
so; rather, it has limited the preemptive power of the CSA to those situations
where there is a “positive conflict” between the state and federal laws such that
50
“the two cannot consistently stand together.” Although it might appear obvious
that state medical marijuana laws create such a positive conflict with the CSA—
those state provisions authorize the manufacture and sale of marijuana for some
purposes while federal law prohibits such activities entirely—in other contexts
the Supreme Court has read similar preemption language extremely narrowly.
For example, in considering virtually identical preemption language in Barnett
51
Bank of Marion County v. Nelson, the Supreme Court held that there was not an
irreconcilable conflict between a federal statute granting national banks the
power to sell insurance and a state statute prohibiting such sales in towns of
fewer than 5000 people; the Court held that a bank could comply with both laws
52
simply by choosing not to sell insurance. A true irreconcilable conflict, the
Court explained, would be one in which a bank was ordered to sell insurance by
53
one statute and simultaneously prohibited from doing so by another.
Application of this reading of the positive conflict language to marijuana
regulation suggests that state medical marijuana laws are not in positive conflict
with the CSA; a positive conflict between state and federal law would exist only
if the states forced some individuals to manufacture or distribute marijuana while
54
the federal ban remained in place.
Given this narrow reading of positive conflict, however, courts considering
preemption generally consider the additional question of whether the state law
55
stands as an impermissible obstacle to the enforcement of federal law. Thus, in
Barnett Bank, the Court found that the federal regulation preempted the state ban
on selling insurance, even though it had previously found no literal conflict
50. See, e.g., 21 U.S.C.A. § 903 (West Supp. 2011) (“No provision of this subchapter shall be construed
as indicating an intent on the part of 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 which would otherwise be
within the authority of the State, unless there is a positive conflict between that provision of this subchapter and
that State law so that the two cannot consistently stand together.”).
51. 517 U.S. 25 (1996).
52. Id. at 31.
53. Id. (“The two statutes do not impose directly conflicting duties on national banks—as they would,
for example, if the federal law said, ‘you must sell insurance,’ while the state law said ‘you may not.’”). See
also Caleb Nelson, Preemption, 86 VA. L. REV. 225, 260–61 (2000).
54. Interestingly, this is something akin to the argument that the counties made in San Diego v. San
Diego NORML, 81 Cal. Rptr.3d 461 (2008): that they were compelled by state law to facilitate marijuana
transactions while simultaneously prohibited from doing so by federal law. As will be discussed infra Part V,
California state courts found this argument unpersuasive.
55. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518, 529 (2010); see id.
at 528 (“Because the ‘physical impossibility’ prong of implied preemption is ‘vanishingly narrow,’” the Court’s
decisions typically have turned on the second prong of implied preemption analysis—whether state law “stands
as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (quoting
Nelson, supra note 53, at 228)).
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between the state regulation and federal law. The Court held that even in the
absence of a positive conflict, the state law presented an obstacle to the federal
policy of making insurance more broadly available.
Thus, in the CSA context, the preemption question essentially comes down to
whether the passage of state medical marijuana provisions presents an obstacle to
enforcing the CSA. And clearly, not any obstacle will do; if Congress had meant
to preempt any inconsistent state law, it had both the means to do so and the
opportunity to make that intent clear. Rather, the question becomes whether state
marijuana laws sufficiently impede the CSA such that they should be deemed
preempted.
To highlight the difficulty of applying this standard, consider Willis v.
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Winters, decided in early 2011 by the Supreme Court of Oregon. In Willis,
applicants for concealed-carry permits sued the sheriffs of two Oregon counties
for failing to issue them permits under an Oregon statute directing the sheriff to
issue such permits to all qualifying applicants. In response, the sheriffs argued
that federal gun laws preempted Oregon’s concealed permit system—that where
an applicant met the statutory criteria but admitted to medical marijuana use, the
issuance of a permit would conflict with a federal statute forbidding possession
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of a handgun by “unlawful user[s] . . . of [a controlled] substance.”
Despite the apparent positive conflict between the state and federal laws in
this case—state law required the sheriffs to facilitate weapon possession that
violated federal law—the Oregon court held that the “shall issue” statute was not
preempted by federal law. Although the court acknowledged that the purpose of
the federal law was “keep[ing] firearms away from the persons Congress
59
classified as potentially irresponsible and dangerous,” the Court found that the
state statute did not operate as an impermissible obstacle to the enforcement of
this federal object. Because the federal statute speaks only to possession of
weapons, while the state statute speaks to the right to conceal a handgun, the
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Court reasoned, preemption seemed inappropriate. Furthermore, because federal
officials remain free to prosecute violators of the federal statute (with the
assistance of willing state officials including the very sheriffs involved in this
action), the state statute did not impermissibly interfere with the enforcement of
federal law.
56. Barnett Bank, 517 U.S. at 37.
57. Willis v. Winters, 253 P.3d 1058 (Or. 2011).
58. 18 U.S.C.A. § 922(g)(3) (West 2000).
59. Willis, 253 P.3d at 1065 (quoting Barrett v. United States, 423 U.S. 212, 218 (1976)).
60. Id. (“[T]he fact remains that the [state] statute is not directly concerned with the possession of
firearms, but with the concealment of firearms in specified locations—on one’s person or in one’s car.
Although, in their briefing, the sheriffs treat that distinction as having no practical significance, there is nothing
in the federal preemption analysis that would support that kind of broad brush approach.”) (emphasis in
original).
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While there is nothing inherently wrong with the Oregon court’s reasoning in
this case, it is difficult to argue with a straight face that there is not a conflict
between a federal statute prohibiting marijuana users from possessing guns and a
state statute requiring local officials to issue concealed carry permits to those
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same marijuana users. Ironically, the same Oregon high court had ruled just the
previous year that the state’s medical marijuana provisions were preempted by
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the CSA, rendering them a nullity.
Just this tiny glimpse into preemption and the regulation of marijuana reveals
how complicated and contested preemption is in this context. But it is important
to note that even if state medical marijuana provisions are not preempted by
federal law, their reach is still significantly limited by the Supremacy Clause. So,
for example, in United States v. Oakland Cannabis Buyer’s Cooperative, the
United States Supreme Court held that a defendant charged in federal court with
violating the CSA was not permitted to argue to a jury that his conduct complied
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with state law. Because therapeutic use is neither mentioned in the CSA nor
imagined by its terms, the Court reasoned, the fact that the defendant might have
been complying with state law was simply irrelevant to the federal charges
64
against him.
Cases like Oakland Cannabis Buyer’s Cooperative make clear the inherent
limits of state power in the area of drug regulation. A state may clearly legislate
in this area; even if its laws are preempted, a legislature cannot be told either to
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pass a particular law or to repeal one already on its books. For example, Jim
Crow laws remained on the books in many southern states for years after it was
61. Nonetheless, the unanimous decision in Willis is not alone. The California Supreme Court found that
the state medical marijuana provision was not preempted by the CSA on the basis that Congress intended to
preempt only laws that “positively conflicted’ with the express provisions of the CSA, and that laws requiring
counties to register medical marijuana users do not expressly conflict with the CSA. County of San Diego v.
San Diego NORML, 81 Cal. Rptr. 3d 461, 480–81 (2008), cert. denied, 129 S. Ct. 2380 (2009)).
62. See Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518, 529
(2010).
Affirmatively authorizing a use that federal law prohibits stands as an obstacle to the
implementation and execution of the full purposes and objectives of the Controlled Substances
Act . . . To be sure, state law does not prevent the federal government from enforcing its
marijuana laws against medical marijuana users in Oregon if the federal government chooses to
do so. But the state law at issue in Michigan Canners did not prevent the federal government
from seeking injunctive and other relief to enforce the federal prohibition in that case. Rather,
state law stood as an obstacle to the enforcement of federal law in Michigan Canners because
state law affirmatively authorized the very conduct that federal law prohibited, as it does in this
case.
Id.
63. 532 U.S. 483 (2001).
64. Id. at 493–94.
65. See Mikos, supra note 47, at 1445–46; Printz v. United States, 521 U.S. 898, 925 (1997) (“[T]he
Federal Government may not compel the States to implement, by legislation or executive action, federal
regulatory programs”); New York v. United States, 505 U.S. 144, 188 (1992) (“The Federal Government may
not compel the States to enact or administer a federal regulatory program.”).
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clear that they were unenforceable. During this time, such laws had symbolic
power, sending a message of contempt to both African-American citizens and the
federal government about the South’s continued resistance to integration. The
federal courts could invalidate those laws and the President could send troops
into those states to see that federal law was being enforced. But federal courts
could not order Southern states to remove those laws from their books any more
than it could order them to enact laws consistent with federal policy.
If a state wants to do more than announce its displeasure with federal policy,
however—if it wants to immunize its citizens from federal prosecution, if it
wants to ensure that there are no negative consequences for those taking
advantage of a relaxation in a state’s criminal laws—neither the medicalization
nor the outright legalization of marijuana can be very effective. The Supremacy
Clause guarantees that, state disapproval notwithstanding, the federal government
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may prohibit that which it wishes to prohibit.
V. THE STATE–LOCAL JUNCTION
In addition to the ambiguity and conflict between state laws (some of which
purport to legalize marijuana) and the federal law (which continues to criminalize
it), there is another level of intergovernmental conflict in the area of marijuana
regulation and reform—the interplay between state and local governments. Even
in those states that have legalized marijuana for medical purposes, there is often a
tension between state and municipal governments over whether and to what
extent the drug may be regulated at the local level. In Colorado, for example,
municipalities and counties are free to enact zoning restrictions on the sale of
marijuana—including complete bans—and a number of local bodies have
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recently chosen to ban it outright. Even though the Colorado Constitution
prohibits the conviction of those using marijuana for medical purposes, there will
likely be many places in the state where marijuana cannot lawfully be
manufactured or purchased.
In California, which has delegated much of the regulation of marijuana from
the state to the local level, the counties of San Diego and San Bernardino sued
the state in 2006 to enjoin it from requiring them to participate in the state68
mandated medical marijuana program. The counties argued that the CSA
66. The federal government is, of course, a government of limited powers; the Supreme Court has
concluded, however, that the regulation of marijuana falls within the Congress’s Commerce Clause powers. See
Gonzales v. Raich, 545 U.S. 1 (2005).
67. See, e.g., Election 2010: Local Medical Marijuana Bans, COL. PUBLIC RADIO, available at
http://www.cpr.org/article/Election_2010_Local_Medical_Marijuana_Bans (last visited November 18, 2010)
(on file with the McGeorge Law Review) (reporting that “[m]ore than 40 cities, towns and counties are asking
voters to forbid or otherwise regulate marijuana-related businesses”).
68. San Diego County v. San Diego NORML, 81 Cal. Rptr. 3d 461 (2008), cert. denied 129 S. Ct. 2380
(2009).
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preempted the state law requiring them to facilitate the applications of those
seeking to register as marijuana patients under the state’s medicinal marijuana
provisions. The counties asked to be excused from their state obligations, arguing
that participation in the state regulatory regime would make them complicit in the
medical marijuana patients and care-givers’ in violations of the federal law. The
counties—like the sheriffs in Willis v. Winters—thus presented a non-trivial
argument that they were incapable of complying with both state and federal law;
the state obligated them to facilitate the very drug transactions that federal law
69
expressly prohibits them from facilitating.
Although the counties lost their suit, the San Diego NORML case illustrates
that, even in those states that have voted to make medical marijuana legally
available, support for such policies is hardly uniform. Just as there are pockets of
support and resistance to federal policy among the several states, similarly
counties and towns can be expected to support state policy with varying levels of
enthusiasm. For example, a number of municipalities in medical marijuana states
have embraced the new industry as a boon to tax coffers. Most famously, the City
of Oakland, California, has sought to establish itself as the Amsterdam of the
United States. Facing fading industry and disappearing tax dollars, the city voted
in 2010 to permit large-scale marijuana production, pledging to become the
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“Silicon Valley of Marijuana.”
Of course, it is not surprising that different jurisdictions within the same state
would have such disparate views of medical marijuana. But it raises
disconcerting questions about the ability of a city or county to opt out of a statewide policy. The traditional understanding of the state–local dynamic is one of
71
master and servant.
Generally considered the mere creations and
instrumentalities of the state, local governments were seen as having essentially
no power to contest state authority:
Municipal corporations are political subdivisions of the state, created as
convenient agencies for exercising such of the governmental powers of
the state as may be entrusted to them. For the purpose of executing these
powers properly and efficiently they usually are given the power to
69. See 18 U.S.C.A. §2(a) (West 1999) (“Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is punishable as a principal.”).
70. Evelyn Nieves, Oakland Votes to Permit Large Marijuana Farms, BUSINESSWEEK, (July 21, 2010),
http://www.businessweek.com/ap/financialnews/D9H3FE201.htm (on file with the McGeorge Law Review).
The failure of Proposition 19 in November 2010 puts the future of this business model very much in doubt. See
Ray Sanchez, California’s Proposition 19 Defeated by Voters, ABC NEWS (Nov. 3, 2010), available at
http://abcnews.go.com/Politics/proposition-19-results-california-votes-reject-marijuana-measure/story?id=1203
7727 (on file with the McGeorge Law Review).
71. Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State
Sovereignty, 93 VA. L. REV. 959, 980 (2007) (“The conventional view of local government identity that has
developed in the interstices of constitutional law holds that local governments exist as creatures of the state,
with questions of local structure, power, and immunity ultimately subject to plenary state control.”).
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acquire, hold, and manage personal and real property. The number,
nature, and duration of the powers conferred upon these corporations and
the territory over which they shall be exercised rests in the absolute
discretion of the state. Neither their charters, nor any law conferring
governmental powers, or vesting in them property to be used for
governmental purposes, or authorizing them to hold or manage such
property, or exempting them from taxation upon it, constitutes a contract
with the state within the meaning of the Federal Constitution. The state,
therefore, at its pleasure, may modify or withdraw all such powers, may
take without compensation such property, hold it itself, or vest it in other
agencies, expand or contract the territorial area, unite the whole or a part
of it with another municipality, repeal the charter and destroy the
corporation. All this may be done, conditionally or unconditionally, with
or without the consent of the citizens, or even against their protest. In all
these respects the state is supreme, and its legislative body, conforming
its action to the state constitution, may do as it will, unrestrained by any
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provision of the Constitution of the United States.
This is certainly the view underlying the California court’s decision in San Diego
NORML. The court held that, “[a]s a general rule, a local governmental entity
‘charged with the ministerial duty of enforcing a statute . . . generally does not
have the authority, in the absence of a judicial determination of
unconstitutionality, to refuse to enforce the statute on the basis of the [entity’s]
73
view that it is unconstitutional.’”
This traditional view has come under criticism in recent years, largely from
74
legal academics. These authors argue that the principle of federalism—with its
embrace of a variety of approaches and views—should include support for a
75
diversity of opinions within states as well as between them. In other words, the
72. Hunter v. City of Pittsburgh, 207 U.S. 161, 178–79 (1907).
73. San Diego NORML, 81 Cal. Rptr. 3d at 472 (quoting Lockyer v. City and County of S.F., 33 Cal. 4th
1055, 1082 (2004)).
74. See Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 COLUM.
L. REV. 1, 1 (1990) (“The insistence on local legal powerlessness reflects a lack of understanding of the scope
of local legal authority. Most local governments in this country are far from legally powerless. Many enjoy
considerable autonomy over matters of local concern. State legislatures, often criticized for excessive
interference in local matters, have frequently conferred significant political, economic and regulatory authority
on many localities.”).
75. See, e.g., Richard Briffault, “What About the ‘Ism’?”Normative and Formal Concerns in
Contemporary Federalism, 47 VAND. L. REV. 1303, 1312 (1994).
[T]he principal themes in the case for federalism-as-decentralization are that ‘the federalist system is
a check on abuses of government power;’ it ‘assures a decentralized government that will be more
sensitive to the diverse needs of a heterogeneous society;’ it ‘increases opportunity for citizen
involvement in democratic processes;’ it ‘allows for more innovation and experimentation in
government;’ and it ‘makes government more responsive by putting the States in competition for a
mobile citizenry.’ . . . These values are largely the same as those conventionally ascribed to local
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things that we like about “Our Federalism” apply with equal or perhaps greater
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power to state-local (and sub-local) federalism. If the states are laboratories of
ideas, then surely the even more diverse collection of local entities can produce
even greater innovation and insights.
This argument for a “localist” parallel to federalism makes a strong case for
giving the municipalities the right to contest state policies, including the choice
of a state to permit marijuana for medical purposes. However, just as segregation
and interposition are the dark side of the argument for state power vis-à-vis the
federal government, so localism creates the opportunity for localities to subvert
the will of the voters of a particular state. We would look askance, for example,
at a municipality that barred churches, bookstores, or abortion clinics outright. If
we mean what we say about there being a state right to use marijuana, why
should we permit localities to defeat state policy through zoning and regulating
marijuana businesses out of their jurisdictions? Just as we worry that the rhetoric
of states’ rights will allow states to undermine important federal principles, so we
might be concerned that localism will allow municipalities to subvert state-wide
policy.
VI. WHERE DO WE GO FROM HERE?
When it comes to the overlapping regulation of marijuana in the United
States, the status quo is clearly untenable. Marijuana, perhaps more than any
other phenomenon, is treated divergently by the three levels of government. An
industry employing thousands, perhaps tens of thousands, of individuals and
taking in hundreds of millions of dollars in revenue cannot be built on illegal
transactions, each of which could lead to tens of years in a federal prison.
Although very few medical marijuana practitioners are in any real danger of
prosecution, the possibility looms over each of them. Similarly, if a state can
announce that the availability of marijuana to needy citizens is an important
government interest, then that policy should not be subject to nullification by
every municipality that disagrees with it.
So if the present situation is unsustainable, what does the future hold?
Attempting to read the future is always a dangerous activity. And in the case of
medical marijuana, as I have argued, analogy seems to fail us; the dissensus over
governments and to local autonomy in the state-local setting. Indeed, it would seem that the
characteristics of the states and of federalism that promote these values are even more pronounced at
the local level.
Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).
76. See Heather K. Gerken, The Supreme Court 2009 Term Forward: Federalism All the Way Down,
124 HARV. L. REV. 4 (2010). Heather Gerken has taken this argument a step farther, arguing for pushing
federalism “all the way down” to sub-municipal entities. Id. She argues that if decentralization of power and
decision-making is one of the important characteristics of “Our Sovereignty,” then we are wrong to stop at the
state, or even the local, government level when discussing the various loci of power in American government.
Id.
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marijuana is simply unlike any contemporary phenomenon. Perhaps the best
example is America’s failed experiment with alcohol prohibition, an example to
which marijuana activists repeatedly return. Through the passage of the
Eighteenth Amendment, the federal government prohibited an activity that was
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widely enjoyed and viewed by many as largely benign. This disconnect between
strong official condemnation and widespread popular acceptance led to the
failure of Prohibition and its eventual repeal; Americans were willing to accept
neither the lawlessness nor the hypocrisy that Prohibition left in its wake.
There is some evidence that the same situation is afoot today. In many ways,
passage of medical marijuana provisions in various states is a rejection of the
federal government’s continued assertion that marijuana is a drug that has no
acceptable medical use. Furthermore, popular support for marijuana legalization
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is at its highest point on record. Anecdotal evidence indicates that marijuana use
79
is widespread across many strata of American life. And yet the federal
prohibition on the manufacture and sale of marijuana shows no obvious signs of
weakening; if anything, the recent crackdown demonstrates the opposite. While
there have been ups and downs in the enforcement patterns of the federal
government and attempts to undo the FDA’s classification of marijuana, the fact
remains, as it has for the past seventy-five years, that marijuana remains a
prohibited substance in the United States.
Perhaps a better analogy than prohibition is, oddly, file-sharing. For years,
the recording industry pursued in court those it believed were illegally sharing
copyrighted music and videos online. Armed with a federal statute that permitted
damages of up to $150,000 per violation, the industry sought to collect not just
from entities like Napster and Grokster that facilitated file-sharing, but also from
those individual consumers it believed were doing the actual sharing. The
industry sued as many as 35,000 people between 2003 and 2008 including,
according to the Wall Street Journal, “several single mothers, a dead person, and
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a 13-year-old girl.” The result of this campaign was terrible publicity, relatively
77. U.S. CONST. amend. XVIII (repealed 1933) (banning the “manufacture, sale, or transport of
intoxicating liquors . . . within . . . the United States” and its territories.).
78. Frank Newport, Record-High 50% of Americans Favor Legalizing Marijuana Use, GALLUP (October 17,
2011), http://www.gallup.com/poll/150149/record-high-americans-favor-legalizing-marijuana.aspx?version=print (on
file with the McGeorge Law Review).
79. See THE DAILY DISH, THE CANNABIS CLOSET: FIRST HAND ACCOUNTS OF THE MARIJUANA
MAINSTREAM (Chris Bodenner, ed., 2010). “For decades, middle-class marijuana use has been America’s best
kept secret. That ends with the tales in this collection of pot use testimonials, from top executives to responsible
parents, from entrepreneurs to A-students, from unwinding suburbanites to the very sick.” Blurb.com,
http://www.blurb.com/bookstore/detail/1832173 (last visited July 21, 2011) (on file with the McGeorge Law
Review). In my interviews with those in the industry, they described the variety and diversity of their clients.
One subject assured me that it was easier to travel across the country with a bag of marijuana as currency than
with a checkbook.
80. Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits, WALL ST. J., Dec. 19, 2008,
at B1.
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modest recoveries, and a steady drop in album sales. In November of 2008, the
industry had had enough, announcing it would stop suing individuals and would
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seek to enforce its copyrights by other means. Facing a yawning gap between
the legal definition of copyright infringement and the way the activity was
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perceived by consumers (particularly young ones), the industry was forced to
acknowledge that it had lost the war on the ground.
As with file sharing, the disconnect between the law as written and the
conduct on the ground may simply have gotten too great to be tenable going
forward. Although the federal government continues to assert that marijuana is a
drug with no acceptable medical uses, majorities in more and more states are
coming to the contrary conclusion. While the federal government continues to
prosecute the manufacture and distribution of marijuana as a serious felony, there
is evidence that growing numbers of Americans consider marijuana use—
whether medicinal or recreational—to be relatively benign conduct. In light of
this disconnect, there is reason to believe that the federal government, like the
RIAA before it, will simply have to conclude that enough is enough.
81. See RIAA v. the People: Five Years Later, ELECTRONIC FRONTIER FOUNDATION 9–13 (September
2008), available at https://www.eff.org/files/eff-riaa-whitepaper.pdf; McBride & Smith, supra note 80 (on file
with the McGeorge Law Review).
82. McBride & Smith, supra note 80.
83. Amanda Lenhart & Mary Madden, Music Downloading, File-Sharing and Copyright, PEW
INTERNET (July 31, 2003), http://www.pewinternet.org/Reports/2003/Music-Downloading-Filesharing-andCopyright/Data-Memo.aspx (on file with the McGeorge Law Review) (findings from a 2003 survey showed that
downloading was more common among adults under thirty than those over thirty).
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