Does a State's Medical Marijuana Laws Put That State in Violation of Federal Drug Law?
The California county of San Diego (joined later by San Bernardino county) stated in a lawsuit filed Jan. 20, 2006 against the state of California:
"Contrary to federal law and an international treaty, California has enacted laws declaring that certain persons have a right to use marijuana for medical purposes and has authorized those individuals to use, possess, distribute and cultivate marijuana without criminal sanction.
The County brings this lawsuit because it believes California's medical marijuana laws are preempted under the Supremacy Clause of the United States Constitution (Article VI) because they conflict with a federal statute (the Controlled Substances Act) and an international treaty (the Single Convention on Narcotic Drugs). Thus, the Country believes that it should not be required to implement California's preempted and therefore void medical marijuana laws."
U.S. Drug Enforcement Administration (DEA) spokesman Richard Meyer, a special agent and public information officer for the DEA's San Francisco office, stated the following, as reported on Aug. 19, 2004 by the Lake County Record-Bee:
"According to the United States Constitution there is a supremacy clause, which says that in case of conflict federal law precedes state law.
According to federal law, there is no such thing as medical marijuana. Marijuana is a dangerous drug that the United States Congress has classified as a Schedule One substance. A Schedule One substance doesn't have any accepted medical use in the United States and a high potential for abuse."
The U.S. General Accounting Office (GAO) stated in a Nov. 2002 report to Congress on medical marijuana:
"Several law enforcement officials in California and Oregon cited the inconsistency between federal and state law as a significant problem, particularly regarding how seized marijuana is handled.
According to a California Attorney General official, state and local law enforcement officials are frequently faced with this issue if the court or prosecutor concludes that marijuana seized during an arrest was legally possessed under California law, and law enforcement is ordered to return the marijuana.
To return it puts officials in violation of federal law for dispensing a Schedule I narcotic, according to the California State Sheriffs' Association, and in direct violation of the court order if they don't return it."
Alex Kozinski, Circuit Judge in the U.S. Court of Appeals for the Ninth Circuit, wrote in his Oct. 29, 2002 concurring opinion in the case of Conant v. Walters:
"The federal government's policy [of targeting physicians for recommending marijuana as medicine] deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law.
Normally, of course, this would not be a problem, because where state and federal law collide, federal law prevails. In the circumstances of this case, however, I believe the federal government's policy runs afoul of the 'commandeering' doctrine announced by the Supreme Court in New York v. U.S. and Printz v. U.S..
New York and Printz stand for the proposition that '[t]he Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.'
Applied to our situation, this means that, much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so."
The American Civil Liberties Union (ACLU) of San Diego, Americans for Safe Access, and the Drug Policy Alliance stated in a joint article, "Medical Marijuana Is Here to Stay," by Kevin Keenan, JD, Steph Sherer, and Daniel Abrahmson, MD published on July 25, 2006 by the San Diego Union-Tribune:
"Our nation is built on the principle that states do not have to march in lock-step with all federal policy decisions. It is true that Congress could have chosen to make the federal government solely responsible for making and enforcing criminal drug laws. But it has not.[...]
The CSA [Controlled Substances Act] explicitly provides that states can implement and enforce their own drug laws using state-level resources and manpower. Even if state laws differ from federal laws, the federal government cannot trump or invalidate them.[...]
Can the federal government arrest and prosecute people under federal law who use medical marijuana in California even though it is legal under state law? Yes.
Can the federal government force California to make medical marijuana illegal under state law and to arrest and prosecute medical marijuana patients? No."
The American Civil Liberties Union (ACLU) sent a Jan. 19, 2006 letter to the County of San Diego, which stated:
"[I]it is clear that federal law does not pre-empt California's medical marijuana laws. It is equally clear that state and local government officials carrying out their duties under the I.D. card program are not violating federal controlled substance laws."
David Borden, Founder and Executive Director of the Drug Reform Coordination Network (DRCNet), wrote in an Apr. 21, 2004 email to ProCon.org:
"There is no conflict between state and federal law regarding medical marijuana, only differences.
Though states do not have the legal right to interfere with federal law enforcement, they likewise have no obligation to have laws criminalizing medical marijuana on their own books. If the federal government wants to enforce its own anti-medical marijuana statutes in states that have passed medical marijuana, it has the power to do so to the extent that those statutes hold up in federal courts, but the states don't have to help them with state laws or resources.
The conflict is not a legal one between federal and state statutes, but a political one between federal anti-marijuana zealots and the urgent moral imperative and perception of cruelty that led to the passage of state medical marijuana laws."