Contributions

An Application of Federal Preemption Law to State Efforts to Legalize Medical Marijuana

by Shri­vats San­gane­r­ia1

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.

Notes:

1. 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).

12. Id.

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).

17. Id.

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)).