Medical Marijuana and the Constitution Panel

Nathan Downing[1]

In the Medical Marijuana and the Constitution panel, moderated by Associate Dean Alan Chen of the University of Denver Sturm College of Law, Professor Robert Mikos from Vanderbilt University spoke first. He looked at the federalism issues surrounding medical marijuana and how the political process can protect states’ rights, even when the Constitution fails to do so. The Controlled Substances Act of 1970 made no exception for the medical use of marijuana and it is unlikely Congress will soon act to reschedule marijuana. Yet today, public opinions show about 70% of Americans favor the legalization of marijuana in some form. Are political safeguards a failure; is more judicial review necessary to give a voice to the will of the people? Not necessarily, certain political safeguards can protect state rights even in the face of opposite federal legislation.

Professor Mikos discussed how even in with a federal ban that works contrary to states’ interests, federal underenforcement of the law can reinforce state rights. Suspending the enforcement of a law provides the same effect as deregulation. Many laws are currently unenforced. If the federal government decided to underenforce marijuana laws, the result could be the same as legalization.

There are multiple reasons the federal government could choose to not enforce its law. Enforcement requires fiscal and political capital; the federal government does not have the means to prosecute all crimes. As a result “the squeaky wheel gets the grease.” More pressing matters than medical marijuana would be enforced, leaving too few resources to deal with a relatively minor problem like medical marijuana. Furthermore, if they wanted to enforce such unpopular legislation, Congress would have to raise taxes to do so, which would be much more unpopular than the prosecution of medical marijuana itself. Also, sometimes the reason for the law fades away, and even if the law is still on the books and there are resources to prosecute, there is no motivation to enforce the law.

Underenforcing a law instead of repealing it also has negative effects. Deontologically, underenforced laws still help shape norms and attitudes, and as long as there is a law condemning the act, many people, even without a threat of prosecution, will still be wary of the act and feel an obligation to obey the law. In the medical marijuana context, people who could legitimately benefit from medical marijuana may not feel comfortable using medical marijuana because of the federal law.

There are other political processes that can help medical marijuana in the face of Congressional bans. States draw congressional districts; state officials can use their authority to preserve their power over domains by threatening to “jimmy” with their districts if Congress passes legislation contrary to state interests. Additionally, Congress cannot force states to use their resources to enforce laws; if Congress lacks the resources the states can choose not to use their own resources to enforce federal laws.

Next, Allen Hopper from the American Civil Liberties Union spoke concerning preemption. He began his presentation discussing Gonzales v. Raich and how the Supreme Court decided that case very narrowly under the Commerce Clause. Raich did not affect medical marijuana at all; it never questioned the validity of California’s medical marijuana laws. However, Raich did have a negative impact on public perception and the California Department of Health, in response, suspended granting medical marijuana identification cards.

Under preemption and the Supremacy Clause, the state cannot erect a shield using state law to protect individuals violating federal law. There are two types of preemption. Positive preemption is a very narrow doctrine where federal laws preempt only what the laws expressly mention. For example, if a medical marijuana federal law said only pharmacies can distribute medical marijuana. Congress has spoken directly to the issue and states could not create other providers for medical marijuana.

The second type of preemption is obstacle preemption, which is an enormously broad doctrine. If a state law impedes the federal law, then the state law is preempted. It is a very dangerous argument for medical marijuana proponents because of the breadth and complication of obstacle preemption.

Ultimately Congress stated that positive preemption is the applicable analysis. This, combined with the Tenth Amendment’s anti-commandeering doctrine, has meant that states have more freedom to not comply with the federal ban on medical marijuana. However, states cannot aid in the breaking of federal law, but the flexibility offered by using a positive preemption analysis was welcome.

Mr. Hopper ended by discussing a case originating in Long Beach, California. The local government instituted a new set of regulations concerning zoning and permits. A group of medical marijuana dispensaries challenged the regulations arguing that federal law preempted the local government’s actions. They argued that a local government could either allow medical marijuana without any further regulations or ban it. The local government countered saying they were not creating restrictions, they were only decriminalizing certain individuals selling medical marijuana who meet certain conditions. The case is set to be heard in the near future and will have a major impact on medical marijuana litigation.

The preemption argument is nuanced and if undertaken by attorneys who do not fully understand the concept, the results can be harmful to medical marijuana. Ultimately, the courts will need to clarify the state of medical marijuana and preemption before medical marijuana issues concerning local and federal government can be solved.

Professor David Schwartz from the University of Denver Sturm College of Law spoke next focusing on separation of powers and how it affects medical marijuana. Constitutional law is a set of rules to be followed by state actors, but it has little to say about the scope of executive power. Political and practical considerations are what drive executive enforcement decisions.

President Obama has a duty to take care and assure laws are faithfully executed; however, the idea of prosecutorial discretion is a broad concept that gives the President, and those under him, the choice of where and how to focus prosecutorial resources. President Obama has approached medical marijuana as if it is under the Constitutional radar. The Ogden and Cole memos are timid approaches, saying prosecuting people that are working within state law is not a priority and prosecutors should act accordingly. This approach gives the least amount of political pushback by not taking a definite stand on either side of the medical marijuana argument.

Even with prosecutorial discretion, medical marijuana could be driven underground because of issues like the Take Care clause to enforce policy, and the practical limits on enforcing the laws do not limit all actions the federal government could take. With these issues surrounding prosecutorial discretion, Professor Schwartz offers some ideas President Obama could implement to limit the attacks on medical marijuana.

President Obama in his duty to execute laws has an implied power to interpret the law. The President could interpret the laws narrowly, leaving room for medical marijuana. President Obama could interpret the law under the Constitutional avoidance doctrine where statutes are construed to avoid Constitutional issues and the Executive Branch could say the federal law is not intended to eliminate the use of medical marijuana when it is legal under state law. Presidents since Andrew Jackson have had independent Constitutional interpretations. Furthermore, if anyone objects to the President’s actions, there are justiciability issues- it would be hard for anyone to have standing in a case challenging the President’s interpretation.

The last speaker for this panel was Professor Martin Carcieri from San Francisco State University. His focus was the Fourteenth Amendment’s Equal Protection clause, arguing that laws criminalizing medical marijuana should pass the strict scrutiny analysis. Laws targeting medical marijuana are selectively prohibiting basic equal liberties by allowing a more harmful substance like alcohol to be consumed while medical marijuana remains a prohibited drug.

Commitments to liberty and equality are at the core of the Constitution. Philosopher John Locke said that because humans are free any legitimate government must treat them as free, fusing liberty and equality into one lens. Liberty is the rule and not the exception in a democracy.

Under the Fourteenth Amendment, equally-situated individuals must be treated the same. Medical marijuana users are treated more harshly than people who drink alcohol or smoke tobacco. Also, removing peoples’ rights to medicine violates Substantive Due Process. If these arguments fail, it does not matter who the President is, as the only way to effectively allow for medical marijuana is to amend the Controlled Substances Act.

Professor Carcieri argued that to reach a more conservative base for a medical marijuana alliance, people should realize that medical marijuana is as much about individuals being protected from the government as it is about states’ rights to enact their own laws. Either way the subject is approached, the treatment of medical marijuana by the federal government is unconstitutional.

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[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.