The Federal-State Conflict: Expecting Prop 19

As I hinted at in my last post on Prop 19, drug policy is not a simple federal-state issue. It has its own gray areas. One source of this confusion is &sec 903 of the Controlled Substances Act itself, which states

"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."

If the federal government decides to challenge the new legal cannabis regime in California, and I believe they will, they must show a positive conflict between the state law, which is prospectively entitled, "The Regulate, Tax, and Control Cannabis Act of 2010," and the Controlled Substances Act.

What is a positive conflict? Law professor Alex Kreit is paraphrased as saying is a condition in which an action of an individual necessarily would be inconsistent with one of the laws at issue. An individual would be caught between two law systems. Following one law would force her to violate the other. This is the preferred reading of the state-based pro-legalization legal community, as it would pretty much require that California require citizens to ingest marijuana for the state law to create a "positive conflict" with federal law.

This view seems to rest on the Supreme Court's "anti-commandeering" rule which prevents Congress from using state instrumentalities in pursuit of federal aims. Congress may not require state officers to perform certain duties, and they may not require state legislatures to pass certain laws, though they may pursue these goals through less coercive means (e.g. withholding highway funds from states which maintained drinking ages below 21). So while the federal government retains the power to prosecute marijuana growers, retailers, and users, it cannot force state agents directly to do its bidding. Because any local regulation set up under Prop 19 to tax marijuana providers establishes a paper trail which exposes the producers or providers to federal criminal sanction, we cannot expect that many operators in the marijuana business will contribute financially to the state. Mark Kleinman has made this point over and over again: don't expect people to pay a state tax on a federal crime.

A more even reading of this clause would suggest that Congress merely intended a role for the states in regulating controlled substances on the federal scheduling regime. If no such clause were included in the statute, the doctrine of preemption would immediately invalidate any state statute which touched on the regulation of any controlled substance. However, because Congress has stated its intent to avoid occupying the whole field of drug policy enforcement, the states get to make decisions themselves.

In Gonzalez v. Oregon 546 U.S. 243, a federal-state conflict arose under the Controlled Substances Act. The Oregon Death With Dignity Act allowed physicians to prescribe but not administer a lethal dose of pain killers for the purpose of assisting patients in medical suicide. Incoming Attorney General John Ashcroft issued an Interpretive Rule which would result in the delicensing of any physician who issued such a prescription and promised to criminalize such a prescription. The conflict here was created due to the dual-supervisory position of the DEA and the State of Oregon over the licensing of physicians. It should be noted that the law at issue concerned a procedure involving a controlled substance, not the controlled substance per se. Because the CSA was intended to curb recreational drug use, the majority reasoned, it did not anticipate being used to regulate medical procedures, the province of primary regulatory responsibility for which had always rested with the states.

Proponents of marijuana legalization in the states should see some hope here: The Attorney General was able to construct the conflict only by creating a clash between state and federal agencies which performed the same duty. There is no comparable way that the DEA could create a conflict with law enforcement departments which are barred from arresting marijuana producers or seizing their plants. However, the Supreme Court would, if such a conflict could be manufactured, apparently see marijuana as more central to the purpose of the Controlled Substances Act and rule oppositely.

We obviously have a lot more to talk about- what do you want to see covered?