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Pot, Printz, and Preemption

April 26, 2017

POT, PRINTZ, AND PREEMPTION: WHY STATES CAN “JUST SAY NO” TO JEFF SESSIONS AND THE CONTROLLED SUBSTANCES ACT

By: Franklin R. Guenthner, Volume 101 Staff Member

Attorney General Jeff Sessions is not a fan of marijuana. Before assuming his role at the Department of Justice, the former Senator from Alabama remarked in April of 2016 that “good people” don’t use the drug.[1] The comment came during a Senate hearing on drug enforcement during which Sessions also remarked that “we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger.”[2] While the Obama administration was famously hands off when it came to enforcing federal marijuana laws,[3] Sessions’ public statements since assuming his new position,[4] as well as his recent order to the Justice Department to review the previous administration’s policies on the issue,[5] may be an indication that Reagan era drug policies will once again become a priority for federal law enforcement.[6] If so, this potential shift may leave states where marijuana has been legalized in some form[7] wondering whether the federal government can invalidate or ignore those laws, and states that are considering similar measures in the future unsure whether they can be prevented from doing so entirely. But the ambiguous precedent surrounding the relationship between federal and state marijuana laws, combined with the legal and practical difficulties of enforcing federal drug laws without the assistance of state and local agencies, make any meaningful changes to state legalization laws of a crackdown on state regulation of marijuana unlikely.

I. PRINCIPLES OF FEDERAL-STATE PREEMPTION

Article VI of the U.S. Constitution provides that “the laws of the United States . . . shall be the supreme law of the land,” thus establishing that federal law preempts state law on a certain issue if a court determines the two cannot coexist.[8] The Supreme Court has carefully delineated between (1) express preemption, where Congress declares in the language of a statute that all state laws regarding that subject matter are preempted;[9] and (2) implied preemption, where preemptive intent is not explicit but may still be established through judicial interpretation. The Supreme Court has further elaborated that there are two types of implied preemption. The first is referred to as “field preemption,” whereby the “intent to displace state law” is “inferred from a framework of regulation ‘so pervasive . . . that Congress left no room for the State to supplement it’ or where there is a ‘federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’”[10] The second is referred to as “conflict preemption,” whereby the state law is either drafted in such a way that it becomes impossible to comply with both the state and federal law at the same time,[11] or the state law otherwise becomes an obstacle to the purposes of the federal scheme.[12]

II. THE CONTROLLED SUBSTANCES ACT AND STATE MARIJUANA LAWS

The most significant federal statute regulating marijuana is the Controlled Substances Act (“CSA”).[13] Passed in 1970 in order to “conquer drug abuse and [] control the legitimate and illegitimate traffic in controlled substances,”[14] the CSA imposes harsh criminal penalties on any person who “knowingly or intentionally” grows, distributes, dispenses, or possesses marijuana, including minimum prison sentences of ten or even twenty years in extreme cases, in addition to stiff fines.[15] In the context of the burgeoning marijuana industry,[16] the CSA also prohibits and criminalizes the knowing operation of any business maintained “for the purpose of manufacturing, distributing, or using any controlled substance.”[17]

Section 903 of the CSA contains the following language with respect to the preemption of state drug laws:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.[18]

While courts have struggled to glean the precise preemptive intent of this section of the statute,[19] it is at least clear from this language that the CSA (1) contains no express preemptive language; and (2) rejects any judicial interpretation finding an intent to “occupy the field” of controlled substances.[20] Therefore, courts have typically only overturned state marijuana laws if they require violation of the CSA, or otherwise undermine the objective of “curbing marijuana consumption.”[21]

The specific provisions of state marijuana laws, then, become critical in understanding the preemptive effect of the CSA for two reasons. First, the CSA cannot preempt state laws that simply legalize the use of marijuana. An example of a state law that “merely legalizes” marijuana use is Section 11362.5 of the California Code, which provides that laws that already restrict the drug for recreational use “shall not apply” to patients who receive a prescription for medical marijuana or their prescribing physician.[22] These laws are not preempted by the CSA because the state is “simply choos[ing] to leave marijuana-related activities to the vagaries of private market forces and federal regulation,” and thus they do not make it impossible to comply with the CSA or otherwise interfere with its implementation.[23]

Second, laws that further restrict the use of marijuana are also not preempted, because any state law that makes it more difficult to obtain marijuana would be interpreted as also promoting the overall goals of the CSA. Such laws would include any existing statutes that prohibit and criminalize the use or possession of marijuana, or laws that impose regulatory restrictions (e.g., an excise tax) on the manufacture, sale, and consumption of marijuana.[24] Because it is possible to simultaneously comply with state laws that limit the pool of potential users of marijuana (either economically or through criminal punishment) as well as the CSA, such laws have and likely will not be preempted by the CSA.

It is likely, then, that only state laws that attempt to promote the sale, distribution, or consumption of marijuana that could face legitimate legal challenges from the federal government. Examples include laws that would potentially incentivize distributors or manufacturers of the drug via a tax credit, or establishing state-run marijuana dispensaries. These laws would conflict directly with the proscriptions of Section 856 of the CSA and thus become an obstacle to its enforcement. While such laws remain speculative at this point,[25] they at least signal the point at which courts would likely find that the CSA overrules state marijuana laws in some fashion.

Unfortunately, the Supreme Court has not provided much guidance on the true limits of preemption under the CSA. The most recent Supreme Court case to discuss the issue was Gonzales v. Raich, which in 2005 held that the CSA could be enforced against California citizens using marijuana for medical purposes in compliance with state law.[26] The Court did not, however, find that the CSA preempted California’s medical marijuana law, and thus the state law has remained in effect.[27] States are likely, therefore, to adhere to the guidelines discussed above until the Court provides further guidance on how state laws might be preempted by the CSA.[28]

III. PRINTZ AND PROBLEMS WITH ENFORCEMENT OF THE CSA

Even if enforcement of the CSA is possible in states that have legalized marijuana in the most limited fashion, a reinvigorated federal drug enforcement scheme still faces significant challenges. First, while some commentators note that even state laws that simply legalize or decriminalize the use of marijuana might seem to “create an obstacle” to the enforcement of the CSA,[29] Gonzales would seem to indicate that many of the state laws that, in a practical sense make it easier to obtain marijuana, will remain viable in the face of the CSA. State and local law enforcement officials in these states, therefore, will likely not be actively investigating marijuana crimes, nor are they incentivized to act if they find any.

Second, and more significantly, Supreme Court precedent forbids the federal government from imposing federal policy on those same officers by setting a clear boundary between federal and state enforcement agencies. In New York v. United States, the Court held that “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program,” because such a law would violate the states’ “residuary and inviolable sovereignty” reserved under the Tenth Amendment.[30] The Court elaborated on this principle in Printz v. United States, where it held that the Brady Act, which directed state and local law enforcement officers to conduct background checks in compliance with federal firearm regulation, was an unconstitutional “[f]ederal commandeering of state governments . . . .”[31]

This “anti-commandeering doctrine” has major implications for any change in Justice Department policy regarding enforcement of the CSA’s marijuana provisions, because it essentially tells the federal government that it is on its own when it comes to enforcing its own drug laws. It further holds that state and local officials cannot be forced to arrest or charge anyone with a violation of the CSA, because doing so would constitute the “enact[ment] or administ[ration of] a federal regulatory program.”[32] As more and more state laws implement laissez-faire statutes toward marijuana consumption and distribution, the Justice Department will have to allocate more of its own resources toward the investigation, prosecution, and imprisonment of the hundreds of thousands of marijuana offenders arrested and charged each year.[33]

The real challenges of enforcing the CSA are also the reason why many state marijuana laws, even those that legalize or decriminalize it, will likely be kept in place. If Congress were to impose a more explicitly preemptive version of the CSA that overruled all state marijuana laws, state laws on the issue would become void, and state and local law enforcement would no longer be able to enforce any controlled substance laws under Printz. Thus, the federal government has a vested interest in not implementing the kind of express preemption discussed in Part I, because it keeps state and local authorities involved in states where marijuana has been legalized on only a limited basis. And given the vital role that these state and local agencies play in carrying out the purposes of the CSA’s marijuana provisions,[34] the Department of Justice is likely to take all the help it can get in that respect.

CONCLUSION

Jeff Sessions has recently assured lawmakers that his past statements on marijuana are not an indication of an “imminent crackdown” on its use in states that have moved toward legalization.[35] And while his public stance on the issue has been a stark contrast to that of his predecessors in the Obama administration, there are legal reasons to believe he is telling the truth. The general ambiguities in federal preemption of state marijuana laws, as well as the practical challenges of imposing a truly federal enforcement scheme, make maintaining the precarious balance between state and federal law on the issue the most likely scenario for the federal government. In the meantime, states that plan to pass their own laws regarding marijuana consumption and distribution will be left to navigate within the confines of the CSA, and will look for cues from federal courts on a still hazy area of constitutional law.

  1. Christopher Ingraham, Trump’s Pick for Attorney General: “Good People Don’t Smoke Marijuana”, Wash. Post (Nov. 18, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-general-good-people-dont-smoke-marijuana/?utm_term=.e8b6216098f3. ↑
  2. Id. ↑
  3. See Jeremy Berke, Obama: It’s “Untenable” for Government to Enforce “A Patchwork of Laws” on Marijuana, Bus. Insider (Nov. 30, 2016), http://www.businessinsider.com/obama-on-weed-legalization-2016-11. ↑
  4. See Ryan J. Reilly & Matt Ferner, Jeff Sessions Issues Ominous Warning on State Marijuana Legalization, Huffington Post (Feb. 27, 2017), http://www.huffingtonpost.com/entry/jeff-sessions-marijuana-comments_us_58b4b189e4b0780bac2c9fd8 (“I don’t think America is going to be a better place when people of all ages, and particularly young people, are smoking pot.”). ↑
  5. Memorandum from Jefferson B. Sessions III, Attorney General, to Head of Department Components, United States Attorneys (Apr. 5, 2017), https://www.justice.gov/opa/press-release/file/955476/download. ↑
  6. See Ingraham, supra note 1 (discussing the Attorney General’s belief that the Obama administration’s approach to marijuana enforcement “reverses 20 years almost of hostility to drugs that began really when Nancy Reagan started ‘Just Say No.’”). ↑
  7. State Marijuana Laws in 2017 Map, Governing Mag. (Mar. 23, 2017), http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html. ↑
  8. U.S. Const. art. VI, cl. 2. ↑
  9. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). ↑
  10. Arizona v. United States, 132 S. Ct. 2492, 2501 (2012). ↑
  11. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963). ↑
  12. Hines v. Davidowitz, 312 U.S. 52, 67 (1941). ↑
  13. 21 U.S.C. § 801 et seq. ↑
  14. Gonzales v. Raich, 545 U.S. 1, 13 (2005). ↑
  15. 21 U.S.C. § 841(b). ↑
  16. See Debra Borchardt, Marijuana Industry Projected to Create More Jobs than Manufacturing by 2020, Forbes (Feb. 22, 2017), https://www.forbes.com/sites/debraborchardt/2017/02/22/marijuana-industry-projected-to-create-more-jobs-than-manufacturing-by-2020/#68b82a443fa9 (noting that the economic benefits of legalizing marijuana may also discourage the Trump administration from pursuing stricter enforcement of the CSA). ↑
  17. 21 U.S.C. § 856(a). ↑
  18. 21 U.S.C. § 903 (emphasis added). ↑
  19. See Robert A. Mikos, Preemption Under the Controlled Substances Act, 16 J. Health Care L. & Pol’y 5, 13–14 (2013). ↑
  20. Id. at 13. ↑
  21. Id. at 15. ↑
  22. Cal. Health & Safety Code § 11362.5 (West 2017). ↑
  23. Mikos, supra note 19, at 16. ↑
  24. See id. at 31 (outlining various provisions in Colorado that impose regulatory burdens on dispensaries and restricted use on individuals). ↑
  25. See id. at 34. ↑
  26. Gonzales v. Raich, 545 U.S. 1, 9 (2005). ↑
  27. Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 Iowa L. Rev. 1449, 1490 (2006). ↑
  28. But see United States v. McIntosh, 833 F.3d 1163, 1176–77 (9th Cir. 2016) (prohibiting federal prosecutors from expending federal funding to prosecute violators of the CSA who are otherwise in compliance with state medical marijuana laws). ↑
  29. See Mikos, supra note 19, at 17 (observing that “it is easy to see how state legalization threatens to undermine congressional objectives.”). ↑
  30. New York v. United States, 505 U.S. 144, 188 (1992) (citations omitted). ↑
  31. Printz v. United States, 521 U.S. 898, 923–25 (1997). ↑
  32. New York, 505 U.S. at 188. ↑
  33. See Timothy Williams, Marijuana Arrests Outnumber Those for Violent Crimes, Study Finds, N.Y. Times (Oct. 12, 2016), https://www.nytimes.com/2016/10/13/us/marijuana-arrests.html (citing studies that found that 574,641 arrests were made for possession of marijuana in limited quantities alone). ↑
  34. Mikos, supra note 19, at 17 (“[T]he states have historically handled nearly ninety-nine percent of all marijuana related arrests.”). ↑
  35. See Burgess Everett, Sessions Reassures Senators: No Pot Crackdown Imminent, Politico (Mar. 2, 2017), http://www.politico.com/story/2017/03/jeff-sessions-marijuana-crackdown-senators-react-235616. ↑
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