Vail Daily column: Marijuana laws and the Supremacy Clause
December 8, 2015
In last week's column, I wrote about the Supremacy Clause and the doctrine of federal preemption. The context in which I wrote was the Syrian refugee crisis and how a number of governors had declared that they would not accept the refugees within their borders. As I explained, where the laws of the states and the United States directly conflict, federal laws will take precedence over state law.
After reading the column, a reader wrote to me suggesting that I address the conflict between state and federal law regarding marijuana. Good idea. As he correctly pointed out, doesn't the Supremacy Clause come into play here to? Indeed it does. But it is different, which I will explain.
First of all, however, as you likely know, Colorado is among only a small handful of states that permit the sale and use of marijuana for recreational use. Oregon, Alaska and Washington D.C. are others. Almost half the states permit some form of medicinal use.
As you also likely know, under federal law, the sale, use and distribution of marijuana for any purpose whatsoever is illegal. Under the federal scheme (the Federal Controlled Substances Act), marijuana is a Schedule 1 drug, in the same category as heroin, LSD, Ecstasy and others. Cocaine is a Schedule 2 substance. Schedule 1 drugs have been deemed by the feds to be dangerous and addictive with no known medical benefits. It is interesting to note that just more than half of all federal prison inmates have been incarcerated for drug offenses, about a quarter of them for crimes related to marijuana.
And yet … in Colorado, the sale and use of pot — subject to a detailed regulatory scheme — is perfectly legal. As least, that is, under state law.
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Amendment 20, passed by the voters of this state in 2000, made the use of medicinal marijuana legal. In 2012, Amendment 64 made Colorado the first state in the nation to adopt the legal recreational use of pot.
What made marijuana sales the thriving business in this state that it has become is a series of memos issued from Department of Justice under the Obama administration that said, in essence, that the feds would not made prosecution of marijuana crimes a priority in the states that had liberalized their marijuana laws provided that those laws were followed.
The second of what are known as the Cole memos made explicit, however, that feds would still crack heads over things such as selling to minors, transporting across state lines, cabals of organized crime and other robust criminal activity. While the memos did not repeal or even expressly modify the Federal Controlled Substances Act, what it said is that this administration at least would not make the enforcement of petty marijuana use or sale an enforcement priority. This is a long way from repealing federal law and the policy could be upended with the next presidential administration. It is possible too that the next administration could lead the way to repeal or significantly modify the Controlled Substances Act.
But what about the Supremacy Clause? Why was I adamant in the last column that the governors could not defy the federal government while here, Colorado and other states which permit marijuana use seem to be flaunting federal law?
The distinction is this, and it's a subtle one:
First, Colorado's law can be characterized as an "exemption." It does not make its citizens do anything at all. It does not require its citizenry to defy federal law or to take one act or another. All it says — at its core — is that if you grow, sell or use marijuana — subject to the requisites of the regulatory scheme and with the limits the law prescribes — the state will not take action. You do not have to use marijuana or not use marijuana but, if you do, the state will stand back. At least as law is interpreted and applied, this is different than affirmatively requiring action.
The second distinction between the Syrian refugee situation and that of marijuana laws is this: The Supremacy Clause and the doctrine of preemption only apply where there is a "positive conflict" between state and federal law. Where a state law is directly opposed to federal law and imposes on its citizenry a burden which flies directly in the face of federal law, a positive conflict may exist. Where, however, a state offers an exemption and simply "stands back," the conflict is less direct.
SPLITTING LEGAL HAIRS
Is this splitting legal hairs? Perhaps. I'm not arguing for or agin' it; I'm simply the messenger. That said, however, law is all about making fine distinctions and arguing that this is different than that by a gnat's eyelash. The doctrine of positive conflict is, however, nothing new and has a long, deep, and respected heritage in the law where the feds and states butt heads.
Is this whole scheme built upon tenuous ground? As Sarah Palin is fond of sayin', "You betcha." Following the next election, it could all turn in upon itself. Can't say if it will or won't. One thing I can guarantee, however, is that if the feds start busting heads again over state's rights and marijuana, the dispute will find its way to court. And the micro-splitting of legal hairs will be a fascinating spectacle.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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