by Rep. Julio Gonzalez, M.D., J.D.

I was speaking to a legislator this week readying himself for his vote on Florida’s medical marijuana legislation when he posed an interesting question: How can we defend voting in favor of any medical marijuana legislation if in so doing we are essentially passing a state law that is prohibited by federal law?  

It’s a great question! Not only because it cites a potential and obvious quandary, but also because it speaks of matters of preemption and federal supremacy.  

Article I, Clause 2 of the United States Constitution reads that the Constitution and laws of the United States “shall be the supreme Law of the Land,” and clear as it may appear, it took a Civil War and hundreds of thousands of American deaths to settle this question. But although the question has been settled conceptually, controversies still arise about the extent of that doctrine and the limitations of its scope.

Enter the medical marijuana debate.

 

Clearly unconstitutional, but…

The Controlled Substances Act (CSA), first passed in 1970, is very clear in Congress’s intent to cover the field of regulating mood-altering drugs such as marijuana.

Citing the lack of any medically accepted use, its high risk of abuse, and its lack of accepted safety for use under medical supervision, the Food and Drug Administration classified marijuana as a Schedule I drug. As such, the use, possession, or manufacture of marijuana is a federal criminal offense, except when used as part of a federally supported research project. There is no exception in federal statutes for any medical use of marijuana.

It would appear, then, that federal law is completely clear on its prohibition of medical marijuana. 

So, how is it possible that a state can pass a law, or even a constitutional amendment legalizing marijuana, for any purpose?  

The short answer, of course, is that a state may not do so. The closest case to directly address this matter was decided by the Supreme Court of Colorado in 2015; Coats v. Dish Network, LLC.  In it, the Colorado Supreme Court summarized the concept of federal supremacy and said that an activity deemed lawful under state law, but unlawful under federal law, cannot be construed to be a lawful activity.

In other words, just because the state says medical marijuana is legal does not make it legal because such a declaration is superseded, and preempted, by federal law.

This being the case, it should be easy to argue that any state law, whether it is mandated by the state’s constitution or passed by a state legislature is unconstitutional because it would be offensive to the Supremacy Clause.

 

Maybe not unconstitutional

But here’s the rub.

In 2014, Congress passed the Consolidated and Further Continuing Appropriations Act prohibiting the use of any funds appropriated to the Department of Justice (DOJ) to keep a state from implementing laws relating to the use, possession, distribution or cultivation of medical marijuana. As a result, the federal government, specifically the DOJ, cannot interfere with a state sanctioned medical marijuana program.

So, is medical marijuana legal in a state that has implemented such a program? Odd as it may sound, the best answer I can give you is that it is not legal, but Congress has decided not to do anything about it — for now, or maybe forever.  

Is it Constitutional under the Supremacy Clause? This question has not yet been decided, and it is ultimately up to the courts to make the call, but I will give you my opinion. In order for a law to be offensive to the Supremacy Clause, Congress must act in a manner that makes clear its intent to preempt all conflicting laws. Although the Controlled Substance Act qualifies as such a law, the injection by Congress of the medical marijuana provision in the Consolidated and Further Continuing Appropriations Act gave the states the autonomy they need to regulate medical marijuana.

As a result, if asked, I believe the courts will rule that state laws relating to medical marijuana are not unconstitutional despite the prohibition in the Controlled Substances Act.

Clear as mud!

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.

 

 

 

America’s Ramshackle Marijuana Laws

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5 thoughts on “America’s Ramshackle Marijuana Laws

  • June 10, 2017 at 12:32 pm
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    You lost me as soon as you recognized the federal government’s authority to legislate drugs. This is a state issue not delegated to that government. Same as marriage.

    Reply
  • June 10, 2017 at 4:26 pm
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    Julio,

    Come on. You keep dancing around the main issue – is there any legitimate reason for marijuana to be illegal in the first place? Do you seriously think any educated person will interpret the following statement as anything other than an utter dodge?

    “Citing the lack of any medically accepted use, its high risk of abuse, and its lack of accepted safety for use under medical supervision, the Food and Drug Administration classified marijuana as a Schedule I drug. ”

    While technically true, it hides the social and political factors leading to this event, and it utterly ignores the incredibly problematic governmental impingement on individual liberty created by prohibition.

    It’s no different than the argument a politician on the left would make about gun control. The American Medical Association, as you must certainly be aware, lobbies for restrictions on firearm ownership based on the fact that scientific research can in fact demonstrate an associated between private gun ownership and increased gun violence. Either you stand on the principle of individual rights or you will see those rights eroded when the collective perceives a threat.

    It would be an exercise in tortured reasoning indeed to make an argument that marijuana is so dangerous to public safety that people must be jailed for possessing the tiniest amount of it, but that private gun ownership is so completely safe that few or no restrictions should be attached to it. Some readers might even detect the stench of hypocrisy.

    Reply
  • Pingback: America’s Ramshackle Marijuana Laws – Dr. Rich Swier

  • June 16, 2017 at 1:52 am
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    You need to take a long hard look at the constitution. Because the powers delegated to the federal government by the states are very clear and concise. Nowhere in the constitution is the regulation of healthcare or its medicines covered. Nowhere is education covered or mentioned. Nowhere in the constitution are many things the federal government has usurped the rights of the states and those of the people. All of those usurpations are unconstitutional and thus carry no lawful weight. They only operate under the color of law. Do you understand what color of law is? It means the authority imposed may appear to be conducted with proper lawful authority but in reality the authority is acting unlawfully. Those unlawful actions conducted under the color of law are too numerous to begin detailing. You know this, I know you do. Quit acting as if you don’t and do your job of representing the people properly. Quit being unethical and unfair to the people. Do your job right and quit making excuses why you can not. You wanted the job, now do it right.

    Reply
  • June 16, 2017 at 10:41 pm
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    Perhaps a more relevant case is Gonzales v. Raich, in which the court ruled that the federal government has the authority to prohibit cannabis due to interstate commerce. The court ruled that a medicinal cannabis patient in California who grew her own was effecting interstate commerce by removing herself from the black market.

    “The government argued that if a single exception were made to the Controlled Substances Act, it would become unenforceable in practice. The government also contended that consuming one’s locally grown marijuana for medical purposes affects the interstate market of marijuana and the federal government may thus regulate and prohibit such consumption.”

    “That argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops because of the aggregate effect of individual consumption on the government’s legitimate statutory framework governing the interstate wheat market.”

    Reply

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