During the beginning of the last century, alcohol became a flash point between the states and the federal government. Could medical marijuana become the 21st-century equivalent?
Legal scholars say that as states, including Rhode Island, move to allow and regulate medical-marijuana dispensaries, the long-standing tension between state and federal powers promises to march on.
There is little question that Congress outlawed medical marijuana with the passage of the Controlled Substances Act. But some states are allowing shops to sell the drug to people approved by health officials as needing marijuana to treat medical conditions.
Earlier this year, Rhode Island became the latest state to approve such dispensaries, picking three organizations after a long and controversial process.
The move drew a sharply worded letter from Peter Neronha, the U.S. attorney in Rhode Island, who warned Gov. Lincoln D. Chafee that the U.S. Department of Justice “maintains the authority to enforce the CSA vigorously.”
Sure, legal scholars say, but what if the state ignores the Justice Department letter and permits the centers to open? The Justice Department could send federal agents to raid the centers. But what legal action could it bring against the state?
None, says Rob Mikos, a professor of law at Vanderbilt University Law School, who has written about the legal questions surrounding medical marijuana.
State officials are not actually providing the marijuana nor are they claiming that the certificates will exempt the dispensaries from federal law. The federal government has not arrested state officials for carrying out government duties that conflict with federal law since the Civil War.
“All that license says is under state law we’re not going to punish you,” Mikos said.
That point is crucial to the emerging legal questions surrounding state regulation of marijuana, Mikos said.
He argues that state laws permitting activities that contradict federal bans on the same activities remain in effect because of restrictions on Congress’ ability to reach into state affairs. As a practical consequence, that leaves state authorities – bound only by state law – with no legal mandate to enforce the federal statute.
Mikos doubts a U.S. attorney would win a lawsuit seeking to strike down a state law that says that police will not take action against certain users and sellers of marijuana.
The federal government, Mikos said, has no right under the U.S. Constitution to tell states how to run their police or courts.
Limiting the federal government’s ability to meddle in state laws has long been the hallmark of the U.S. federalist form of government, said Hugh Spitzer, an affiliate professor of law at the University of Washington School of Law who studies constitutional issues.
“To me the big question is, why doesn’t the Department of Justice bring a federal court action in Rhode Island, in California, in Washington to bar the operation of these [medical-marijuana] statutes?” he said. “My hunch is they are not sure they would win.”
A win, however, would not be unprecedented. During the Civil Rights era, the federal government successfully sued to block Jim Crow segregation laws passed by states.
Mikos argues medical marijuana is different. Congress, he says, has not specifically pre-empted state laws that govern private conduct that the federal government deems objectionable.
In the absence of such a law – which Mikos thinks wouldn’t pass constitutional muster anyway – the federal government stands on shaky legal ground.
Also on shaky political ground, Spitzer said. A lawsuit over state medical-marijuana laws may bring unwelcome political consequence for President Barak Obama, who early in his administration indicated support for medical marijuana.
Nor does the federal government have enough manpower to police for marijuana violations across the country. The federal government already relies on state officials to bring 99 percent of cases involving marijuana, Mikos said.
“What’s happening now is I think the U.S. attorneys are sort of bullying lawmakers in these states where they have gotten these letters,” Mikos said.
In some states, it appears to be working. Washington Gov. Christine Gregoire recently vetoed legislation that would have regulated medical-marijuana dispensaries, citing the letter from the two U.S. attorneys in her state. Here in Rhode Island, Chafee put a hold on issuing the certificates until he could review the U.S. attorney’s letter.
Spitzer said U.S. attorneys are likely trying to head off a seemingly unstoppable march toward marijuana becoming a commonplace drug generally accepted by the public.
“That’s why I think they’re terribly worried if half the states allow medical marijuana there’s just no way they can enforce the federal policy and the federal policy will collapse,” he said.
Just what that federal policy is, however, is not so clear-cut. In October 2009, then U.S. Attorney General David Ogden issued a memo saying the Justice Department would not focus its limited resources on medical-marijuana operations in compliance with state laws.
Andrew Horwitz, the former director of the Criminal Defense Clinic at Roger Williams University, said it’s impossible to know if the recent letters mark a true shift in federal policy or merely U.S. attorneys trying to circumvent the legal doubts by going directly to dispensary owners.
“The real target would be the businesses that were hoping to become the distributors,” he said. “They’ve been told if you open this business we’re going to show up, probably on day one, put you in handcuffs and charge you with a very serious crime.” •
