Marijuana and its legality are topics of significant controversy among lawmakers, politicians, and citizens alike in the United States today. For decades marijuana has been outright banned in the United States. But in more recent years, Marijuana has been scientifically proven to have benefits in some medical practices. As a result of this finding, among others, at least ten states in the United States have made marijuana legal for recreational use and an additional 22 states legalizing it for medicinal use. Though this significant progress toward legalization is moving forward, there is still much resistance from the federal government with regards to it. States want to pass laws with regards to marijuana, but often these laws are challenged in court by the federal government, and the government uses its federal preemption power to overrule the laws attempting to be passed by states. Federal preemption is often the driving force in many cases because of its widespread application in law and because there are so many different cases that support various applications of federal preemption in different situations. But federal preemption does not win every case; there are cases where federal statutes like the CSA cannot overturn state statues.
The Controlled Substances Act, or CSA, has been the primary weapon for the government in opposing the state efforts to push for legalization. The Controlled Substances Act is the statute establishing federal drug policy under which the manufacturing, importing, possession, use, and distribution of certain substances is regulated. The CSA represented a major expansion and reform of federal drug law and policy. Congress passed the CSA primarily to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. The Controlled Substances Act places all substances which were in some manner regulated under existing federal law into one of five schedules based on their psychological and physical harms, their potential for abuse, and their redeeming therapeutic value. Placement into these schedules is based upon the substance’s medical use, potential for abuse, and safety or dependence liability. Congress identified marijuana as a Schedule I drug, alongside such drugs as heroin and LSD. This decision reflects the view that marijuana is dangerous and lacks any redeeming qualities which means all marijuana use is considered drug abuse and a federal crime.
Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict. Which means a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law, but there are some exceptions to this, which will be discussed later on. In the case of marijuana, the Controlled Substances Act, a federal law, is being applied to overrule states in courts across the country. There are dozens of instances where the CSA and federal preemption either prevent states from passing laws in favor of marijuana or discourage them from being drafted at all. Court cases where state and federal statutes clash can be with regards to the use and legalization of medicinal marijuana.
One court case highlights state law versus federal preemption is Pack v. Superior Court 199 Cal.App.4th 1070 (2011). In this case, Long Beach, California adopted a medical marijuana collective ordinance that required collectives to have a permit to operate, set buffer zones between collectives and sensitive uses, and needed collectives to be at least 1,000 feet apart. There was an application that must be filled out by applicants for this permit. There was a fee of $14,000 to apply, and if the application were approved permit holders would have to pay an annual price of $10,000 or more. Permit holders were also required to have their medical marijuana analyzed by an independent party to ensure that it contains no pesticides or contaminants.
Ryan Pack, among other individuals, challenged the ordinance, alleging the city’s ordinance is preempted federal law. The superior court upheld the ordinance, and plaintiffs appealed to the Second District Court of Appeals. This Court reversed the decision of the superior court, concluding that the ordinance permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, which is preempted by federal law.
Another court cases that shows the power of federal preemption is in Emerald Steel, Inc. v. Bureau of Labor and Industries 230 P.3d 518, 348 Or. 159. This case involved Emerald Steel’s 2003 and Anthony Scevers, an employee who was fired for his use of medical marijuana. He used this marijuana for anxiety, panic attacks, nausea, vomiting, and severe stomach cramps –which Scevers claimed prohibited him from eating. His physician determined that marijuana could "mitigate the symptoms or effects" of his condition, Scevers obtained a medical marijuana card in 2002. He used marijuana one to three times per day throughout his employment, however, when offered permanent job subject to passing a drug test, he told Emerald Steel about his medical marijuana use and was fired one week later.
Scevers filed a complaint with the Oregon Bureau of Labor and Industries, BOLI, alleging that Emerald Steel had discriminated against him by failing to make reasonable accommodation for his disability. The Oregon Court of Appeals ruled in favor of Scevers and BOLI. However, the Oregon Supreme Court reversed that decision, finding that employers had no responsibility to accommodate the use of marijuana though it is allowed under the Oregon Medical Marijuana Program. The court's decision is based on the fact that the Controlled Substances Act makes all marijuana use illegal, and because it is a federal law, it preempts the section of the Oregon Medical Marijuana Act authorizing its use.
An additional court case that illustrates federal preemption is United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001). Oakland Cannabis Buyers' Cooperative was organized to distribute marijuana to qualified patients for medical purposes. The United States brought legal action upon the Cooperative and its executive director under the Controlled Substances Act. The U.S. argued that the Oakland Cannabis Buyers' activities violated the Controlled Substances Act's prohibitions on possessing, manufacturing, and distributing controlled substance with the intent to distribute it. The District Court ruled against the Cooperative's activities rejecting its defense that any distributions were medically necessary, but Oakland Cannabis Buyers' proceeded to distribute marijuana even though a decision was made. There was no exception that could be made to state laws because the Controlled Substances Act was a federal law and it preempted state law in this instance.
A final case that portrays preemption with regards to laws dealing with marijuana is City of Lake Forest v. Evergreen Holistic Collective 138 Cal. Rptr. 3d 332 (Cal. Ct. App. 2012). In this case, the City of Lake Forest filed a nuisance complaint against dispensaries, including Evergreen, alleging a per se nuisance cause of action for violating zoning provisions that banned medical marijuana outlets. The City also alleged in a second cause of action that whether or not a dispensary function constituted a per se nuisance, Evergreen's use of its premises created an actual nuisance.
The City sought a preliminary injunction to shut down Evergreen and the other dispensaries. One of the dispensaries asserted that its activities fell within a zoning category authorizing service businesses. Alternatively, the dispensaries argued they had not violated the City's code because the City did not require a business license prior to a new enterprise opening its doors. The dispensaries also argued state medical marijuana law, including the legislature's endorsement of cooperative or collective distribution endeavors, prevented the City from banning dispensary activities as a public nuisance.
The trial court granted the City's request for a preliminary injunction, concluding a local government's ban on medical marijuana dispensaries sufficed to establish the dispensaries' property use constituted a per se nuisance. Evergreen and several other dispensaries appealed and determined that because state medical marijuana law preempts total local bans on medical marijuana dispensaries the trial court erred in issuing its preliminary injunction on per se nuisance grounds. Therefore, reversed the injunction and remanded the matter for further proceedings.
The issue of preemption arises anytime Congress and the states pass laws that govern the same activity. There are examples of times where federal preemption does not overrule local or state laws. Some instances where this might occur are when there is the absence of federal law, or when a state law would provide more protections for consumers, employees, and other residents than what is available under existing federal law, state law holds. In addition, there are instances where it is possible to abide by both state and federal law, which means that federal preemption is not applicable.
An example of a court case that illustrates where federal preemption would not apply is in Ter Beek v. City of Wyoming, 823 N.W.2d 864, 867–73 (Mich. Ct. App. 2012). In this case, a citizen of Wyoming, Michigan named John Ter Beek, filed an action in the Kent Circuit Court against the city, hoping to have a local zoning ordinance nullified and to avoid it being enforced. Ter Beek was a patient who was qualified to use medicinal marijuana. He also held a registry identification card, which was deemed legal under the Michigan Medical Marihuana Act. He wanted to cultivate and use marijuana for medical purposes in his home and argued that a section of the MMMA, preempted the ordinance. Both parties moved for summary disposition. Ter Beek argued that the federal Controlled Substances Act conflicted with and was preempted by the MMMA. On the other hand, the City of Wyoming argued that the CSA preempted the MMMA. The court granted summary disposition in favor of the city, agreeing that the CSA preempted the MMMA. The Court of Appeals reversed this decision, concluding that the ordinance conflicted with the MMMA and that the CSA did not preempt the given section of the MMMA because it was possible to comply with both statutes simultaneously and the state-law immunity for certain medical marijuana patients under this section did not stand as an obstacle to the federal regulation of marijuana use.
Another time where a federal statute does not preempt a state statute is in Noffsinger v. SSN Niantic Operating Company, LLC (District Court, D. Connecticut). Katelin Noffsinger has used medical marijuana since 2015 and is a registered qualifying patient in the state of Connecticut. She was first prescribed a daily dose of Marinol in 2015 also in order to treat symptoms related to post-traumatic stress disorder.
In July 2016, Noffsinger was offered for a position at Bride Brook, a nursing facility, as Director of Recreational Therapy. After receiving the offer, she was asked to take a routine drug screen before being hired. Noffsinger told Bride Brook that she was diagnosed with PTSD and because of it, she took prescription marijuana. Noffsinger provided Bride Brook a copy of her patient registration certificate, which showed that she was a “qualifying patient” under the Connecticut Palliative Use of Marijuana Act. Noffsinger further explained to Bride Brooks that she only took Marinol at night before she went to bed and would not be under the influence of the medical marijuana during the day. The day before Noffsinger was supposed to start working for Bride Brooks, they rescinded her job offer because she tested positive for marijuana.
As a result, Noffsinger filed a complaint in state court, stating that Bride Brooks committed a violation of Connecticut Palliative Use of Marijuana Act’s anti-discrimination provision. The provision said that an employer cannot deny, fire, penalize, or threaten a person solely on the person’s or employee’s status as a qualifying patient. Bride Brook argued that Connecticut Palliative Use of Marijuana Act is preempted by the Controlled Substances Act Americans with Disabilities Act and Food, Drug and Cosmetic Act based on the idea of obstacle preemption, which states that state laws are preempted or invalidated if they hinder the objectives and/or goals of Congress.