by Shrivats Sanganeria*
The federalist model of separation of powers often sets up protracted conflict over the extent to which the federal government is able to preempt the actions of states. Among the growing arenas for such preemption disputes is the field of controlled substances, which the federal government regulates under the Controlled Substances Act (“CSA”). However, several state legislatures have challenged the federal government’s preemptive authority by creating medical marijuana cardholder systems, where individuals can register for a card to obtain and consume medical marijuana. Any such state medical marijuana laws (“SMML”) that were modeled this way would prevent cardholders from being discriminated against by their employers, and shield doctors who prescribe medical marijuana from criminal liability. In this Contribution, Shrivats Sanganeria (’21) argues that any such state statute should be preempted under a theory of obstacle preemption, for the state would have affirmatively authorized conduct that Congress prohibited with the CSA, thus frustrating the purpose of the federal legislation.
Congress’s power to preempt state laws is derived from the United States Constitution’s Supremacy Clause, which holds that the “Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”2 The Supreme Court, interpreting the Supremacy Clause, has held that federal legislation will preempt state law under three different conditions. The first circumstance is express preemption, which exists when Congress unambiguously states that the federal legislation will preempt state statutes.3
The other two types of federal preemption fall under the umbrella of implied preemption, where state legislation is preempted without any explicit statement from Congress.4 First, if the state legislation regulates a sphere of activity where Congress had intended for federal law to “occupy a given field,” then the state legislation is invalidated under the theory of field preemption.5
Second, under the theory of conflict preemption, federal legislation preempts state law if the state legislation conflicts with federal law.6 Conflict preemption itself is split into two categories: obstacle preemption and impossibility preemption. Obstacle preemption occurs when a state law acts as an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”7 Impossibility preemption occurs when it is practically impossible to simultaneously comply with both federal and state legislation, so federal law preempts state law.8 Ultimately, irrespective of whichever preemption theory is invoked, “the purpose of Congress is the ultimate touchstone in every pre-emption case.”9
While any potential state medical marijuana law (“SMML”) is unlikely to be preempted by the Controlled Substances Act (“CSA”) under the theories of express, field, or impossibility preemption, federal law does appear to preempt these state laws under obstacle preemption.
In designating marijuana as a Schedule I substance, the CSA criminalizes the use, possession, manufacture, or distribution of marijuana, including for medicinal purposes.10 By contrast, an SMML would prohibit employers from discharging an employee on the basis of their status as a medical marijuana cardholder. The SMML, by allowing state residents to use medical marijuana in violation of federal law, is preempted by the CSA because it frustrates the basic scheme and objectives of the federal legislation. By prohibiting employers from discriminating on the basis of cardholder status, the SMML is functionally requiring state employers to facilitate, or at the least, remain complicit in its employees’ violation of federal law.
Courts have held, including in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, that merely “affirmatively authorizing” conduct that federal legislation has already prohibited indicates an attempt by state law to act as an obstacle to the enforcement of federal law.11 Emerald Steel concerned an Oregon statute authorizing the use of medical marijuana, which was held to be preempted due to the federal prohibition on marijuana use in the Controlled Substances Act.12 Indeed, this doctrine flows consistently from the United States Supreme Court’s own holding that state laws are preempted if they require conduct that is prohibited by federal law.13 While it is certainly true that the SMML would not explicitly prevent the federal government from intervening to enforce the CSA, it is equally true that the SMML is permitting state residents to use medical marijuana in violation of federal law, which satisfies Emerald Steel’s standard for invoking obstacle preemption.
The notion that the employers themselves are only being required not to discriminate on cardholder status does not alter this analysis, since cardholder status is merely a reflection of the fact that the cardholder is using marijuana in violation of federal law. To hold otherwise would allow for states to circumvent federal law through anti-discrimination provisions that prevent in-state actors from complying with federal policy, which would ultimately undermine the federal regulatory power that Congress has established, particularly with respect to controlled substances.14 Additionally, the Eleventh Circuit Court of Appeals, yet to be contradicted by any sister circuit, has corroborated this notion by holding that where the federal government permits certain action, the state government’s prohibition of that action will effectively “supplant or replace federal law,” thus posing an obstacle to the federal government’s goals.15 Accordingly, the state legislature cannot evade Congress’s desire to prohibit marijuana consumption by framing the state law as an anti-discrimination provision.
Assuming, arguendo, that there actually were a distinction between a state statute that explicitly authorizes marijuana use and a statute that merely allows people to obtain medical marijuana cards, the SMML would still likely be invalidated by the CSA, because it would be promoting the general right of individuals within the state to use marijuana, in addition to outlining the procedures for registering a medical marijuana card with the state government. Such a provision frustrates the objectives of Congress by running afoul of its desire to prohibit medical marijuana consumption. To be sure, if the statute’s provisions were severable, then the portion of the SMML that provides for the medical marijuana card could be preempted by the CSA, while leaving the rest of the state statute, including the anti-discrimination provision, intact. However, this would render the anti-discrimination provision inoperable, since there would be no reason for anyone to obtain a medical marijuana card in the first place if it were still illegal to use or possess marijuana. Therefore, any attempt at distinguishing between Emerald Steel and a generic SMML, on the grounds the former did not concern a state statute with cardholder anti-discrimination protections, does not change the fact that the SMML is nonetheless preempted by the CSA.
Moreover, there should be a presumption in favor of preemption where a state law interferes with Congress’s ability to regulate interstate commerce, including drugs. State laws are preempted when they regulate “an area where there has been a history of significant federal presence.”16 The regulation of marijuana, under the CSA and as an exercise of Congress’s broad Commerce Clause authority, qualifies as an area of “significant federal presence” such that a state’s attempt to wrest away regulatory authority from Congress should be rebuked.17 To be sure, an employee who possesses a medical marijuana card in a state with an SMML statute may argue that a court ought to apply a presumption against preemption because this is a labor and employment law matter, which were historically reserved for states to regulate as part of their general police powers.18 But this would be no more an intrusion into the police powers of the state than Gonzales v. Raich, where the federal government, by regulating the intrastate use of medical marijuana, arguably interfered with the ability of state governments to regulate the health, safety and welfare of their residents that find the use of medical marijuana beneficial to their health. Yet just as how the United States Supreme Court did not entertain such a notion in Raich, so too any court evaluating a typical SMML would unlikely accept this argument.
Since the state government’s objective in implementing an SMML conflicts with a key federal goal underlying the implementation of the CSA, the SMML should be preempted as an obstacle to the enforcement of federal law. The state legislatures may indeed recognize the medicinal value of marijuana, highlighting the intent of the legislation to allow for patients who are given a prescription to then register with the state and obtain a medical marijuana card. However, the CSA explicitly classifies marijuana as a Schedule I substance, which makes it among the most strictly regulated drugs, reflecting the view of Congress that marijuana was dangerous and yielded “no medical benefits worthy of an exception.”19 Such a federal classification of marijuana highlights how Congress intended the CSA to inhibit the use of medical marijuana that any state cardholder system would enable.
Indeed, the fact that Congress specifically included provisions that allowed for criminal punishment of the possession, distribution, and manufacture of marijuana20 further demonstrates the congressional goal of reining in marijuana use across the United States, including within individual states. Conversely, any such SMML would expressly insulate medical marijuana users, pursuant to certain guidelines, against any criminal prosecution or legal sanction, thereby protecting and facilitating the use of medical marijuana contrary to the aim of Congress. While an employee with a medical marijuana card may contend that the federal prohibition on marijuana can coexist with state anti-discrimination protections for medical marijuana cardholders, the state law is nonetheless preempted by federal law for running afoul of congressional objectives by authorizing the consumption of a federally prohibited drug.
Moreover, it would amount to a distinction without a difference to state that the SMML ought not to be preempted by the CSA because employers would still be allowed to discipline or sanction any employee who fails their drug test because of their medicinal use of the drug, given that the SMML would specifically target discrimination based on the status of holding a medical marijuana card rather than the actual use or possession of marijuana. However, because any SMML would have been enacted in order to guarantee the right for individuals within the state to obtain and use marijuana for medicinal purposes, it would be contrary to the purpose of the state statute to interpret the anti-discrimination provisions to apply to cardholders except for when they actually use marijuana. Indeed, the state would be permitting the registration of medical marijuana cards precisely for the benefit of being able to consume medical marijuana, so it would be counterintuitive to prohibit the employment discrimination on the basis of cardholder status while allowing for employers to discriminate against on the basis of exercising the privilege that is enabled by the cardholder status. Hence, the lack of an anti-discrimination provision is insufficient to distinguish Emerald Steel’s holding that the CSA preempts a state statute protecting medical marijuana use.
Even if a medical-marijuana-using employee were to contend that looking to the SMML’s broader objectives as part of the preemption analysis merely posits a hypothetical obstacle rather than an actual one, the mere existence of a plausible conflict is sufficient to uphold conflict preemption. The Supreme Court has set aside a broad standard governing conflict preemption in clashes between state and federal interests, holding that even in the absence of explicit congressional intent for preemption, federal law nonetheless displaces state law if there is a conflict between “federal policy or interest and the [operation] of state law[.]”21 The potential conflict between the SMML and the CSA meets the broad standard required for conflict preemption.
Given Congress’s broad prerogative to regulate controlled substances, as well as its clear intent to criminalize marijuana, states should not be allowed to insulate themselves from the preemptive authority of the Controlled Substances Act. Accordingly, any state medical marijuana law that is implemented with the provisions described above, including the anti-discrimination provision, must be preempted as an obstacle to the achievement of federal objectives.
* Shrivats Sanganeria is a J.D. Candidate (2021) at New York University School of Law. This piece is a commentary on the problem presented at the 2020 Robert F. Wagner National Labor and Employment Law Moot Court Competition at New York Law School. The question presented was whether the Wagner Medical Marijuana Act, a statute passed by the fictional state of Wagner, posed an obstacle to the objectives of Congress such that the statute was preempted by the federal Controlled Substances Act. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of the argument that was assigned to the author.
2. U.S. Const. art. VI, cl. 2.
3. See Goldstein v. California, 412 U.S 546, 553 (1973).
4. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (discussing the uses of preemption outside of an express provision); see also Barnett Bank of Marion Cty., N.A. v. Nelson, 517 U.S. 25, 31 (1996) (“More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, courts must consider whether the federal statute’s ‘structure and purpose,’ or nonspecific statutory language, nonetheless reveal a clear, but implicit, pre-emptive intent.” (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977))).
5. California v. ARC Am. Corp., 490 U.S. 93, 100 (1989).
6. See Free v. Bland, 369 U.S. 663, 666 (1962) (“[A]ny state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.”).
7. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
8. See Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963).
9. Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
10. See 21 U.S.C. §§ 841–844 (2020).
11. See 230 P.3d 518, 529 (Or. 2010) (holding that a similarly styled Oregon medical marijuana law was preempted by the Controlled Substances Act).
13. See Mich. Canners & Freezers Ass’n v. Agric. Mktg. & Bargaining Bd., 467 U.S. 461, 477–78 (1984) (holding that a Michigan state statute regulating collective bargaining in the asparagus industry was preempted by federal law).
14. See, e.g., Gonzales v. Raich, 545 U.S. 1, 29 (2005) (upholding the CSA’s authority to regulate the intrastate manufacture and production of medical marijuana under Congress’s Commerce Clause authority).
15. See Boyes v. Shell Oil Prods. Co., 199 F.3d 1260, 1269–70 (11th Cir. 2000) (holding that the federal Resource Conservation and Recovery Act preempted a Florida state law that sought to prohibit remedial action that had been permitted under federal law).
16. See United States v. Locke, 529 U.S. 89, 108 (2000).
18. See Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 R.I. Super. LEXIS 88, at *42 (Super. Ct. May 23, 2017) (holding that there is a thumb on the scale against preemption in situations involving the historic police powers of the state).
19. United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 493 (2001).
20. See 21 U.S.C. §§ 841–844 (2020).
21. See Boyle v. United Tech. Corp., 487 U.S. 500, 507 (1988) (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966)).