Vail Daily column: The marijuana conundrum
You may have heard that marijuana is legal in Colorado. Yeah, I know … no big news flash. What may surprise you, though, is that marijuana — at least for medical use — has been legal for more than a decade and a half.
In 2000, Colorado voters ratified the use of marijuana for certain medicinal purposes. By virtue of this legislation, the medical marijuana industry was born but was, at first, low key and largely under the radar. In the early days following voter approval of medical marijuana, the cultivation and legal distribution of pot for such purposes was entirely caregiver-based; that is, marijuana was cultivated and distributed in very small operations to a very limited clientele.
That changed in February 2009. Following President Obama’s historic election, Eric Holder, his new attorney general, announced that the administration would make prosecution of marijuana offenses a low priority in those states where voters approved its use for medical purposes. If not the birth, this was the moment (if you’ll forgive the pun) of the flowering of the medical marijuana industry in Colorado. Why this is, however, deserves closer attention.
Under federal law, in 2009 — as is still true — the use, possession, sale and distribution of marijuana for any purpose whatsoever is illegal. The Controlled Substance Act classifies cannabis as a Schedule I drug and defines it as one “with no accepted medical value in treatment.” As a Schedule I drug, cannabis — or, more accurately, its active ingredient, tetrahydrocannabinol, THC — has some pretty tough neighbors. For purposes of federal law at least, cannabis rubs elbows with such substances as LSD, ecstasy and heroin. Interestingly, crystal meth, cocaine and crack are Schedule II drugs, which, according to the Federal Drug Administration, means the drug is medically approved for at least some purposes but has a high potential for abuse and dependence.
Recreational sale and use of marijuana became legal in this state by virtue of Amendment 64, passed in 2012.
So here’s the conundrum. Colorado sits squarely in the heartland. And the Supremacy Clause makes federal law “the supreme law of the land,” notwithstanding the contrary law any state might have, propose or advance.
There are exemptions to the Supremacy Clause. Since the Colorado law doesn’t make citizens of this state do anything at all — it simply allows certain conduct — an argument can reasonably be made that it doesn’t really butt up against the federal prohibitions. The Supremacy Clause and the doctrine of preemption (that is, federal law preempts conflicting state law) only applies 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.
We lawyers should be barbers considering the fine hairs we sometimes split.
Consider this: Although the Colorado marijuana industry is — forgive me — growing like a weed and piling up profits, where is a pot entrepreneur to stash his cash? Unlike most businesses — and by the way, the marijuana industry in this state is a licensed and highly regulated business — when the vendor closes up his shop at the end of the day, he’s got nowhere to make deposits. Because the banking industry is federally regulated and because under federal law the marijuana business is illegal, most banks will not accept marijuana businesses’ deposits. Neither can marijuana shops take payment by credit card as credit cards are tied to banks.
So the marijuana businessman who, by the way, is making a hefty contribution to the state budget, owing to the substantial taxes levied on the sale of recreational weed, ends up with a rather large bag of cash at the end of the day. This is neither safe nor sane for anyone.
Here are some other things to think about. What if you have a health savings account? An HSA is a device created by — you guessed it — federal law, in this case the Department of Revenue. Speaking generally, one may use one’s HSA to pay for all things medical, like bandages, crutches, deductibles and prescriptions. But what if your prescription is for medical marijuana? Instead of a prescription for medical marijuana, you receive a doctor’s note that says you may benefit from its medical properties. So what if you spend your HSA funds on medical marijuana? And what if you get audited? I’m not sure I know the answer, but I do know it would be interesting.
I could present many more examples.
Marijuana presents countless legal conundrums. Whatever side of the cornrow of this controversy you stand on, one thing is for sure; state and federal law should be reconciled. It makes no sense to abide by the law in Colorado while breaking the law in … Colorado. Once the hot air of this political season is behind us, a reasonable solution calls.
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 and at either of his email addresses, email@example.com or firstname.lastname@example.org.