The Complexity of Federalism and Cannabis Law

When Governor Phil Murphy signed legislation in 2021 to legalize marijuana for adult use, that moment could trace its roots back to 1996 and the voters of California approving the Compassionate Use Act, known as Proposition 215. California became the first state to approve the use of cannabis for medical purposes in direct violation of the federal Controlled Substances Act of 1970 (“the CSA”).

Over 25 years later, 37 states have legalized cannabis for medical purposes, and 19 states permit recreational adult use. Yet the text of the CSA remains the same—cannabis is an illegal Schedule I drug with the high potential for abuse and no accepted or known safe medical use.

How can three-fourths of the states have laws in direct conflict with a federal statute? This article answers that question by exploring the history of cannabis legalization and how it illustrates the practical realities of federalism.

From the CSA to ‘Raich’

Enacted in 1970, the CSA harmonized multiple federal laws governing drugs and chemical substances into a single comprehensive statute. One of the CSA’s most important provisions governs how the federal government classifies controlled substances. Schedule I drugs or substances have the highest “potential for abuse,” “no currently accepted medical use in treatment in the United States,” and a “lack of accepted safety for the use of the drug or substance under medical supervision.” 21 U.S.C. 812(b)(1). Cannabis has been listed as a Schedule I substance since CSA’s enactment.

Despite the federal prohibition, the push for medical cannabis began in California at the local level during the early 1990s. This ultimately led to the passage of Proposition 215, with roughly 57% of voters supporting the measure, and the establishment of California’s first-in-the-nation, statewide medical cannabis program. It also set into motion the battle between the supremacy of federal law and the desire of states to deviate from the CSA.

This conflict reached an inflection point when the U.S Supreme Court took up Gonzales v. Raich, 545 U.S. 1 (2005). The respondents, two medical cannabis patients in California, sought a declaratory judgment that the CSA was unconstitutional after local and federal agents seized and destroyed their cannabis plants grown legally under California law. Id. at 7. The question before the Court was “not whether it [was] wise to enforce the [CSA] in these circumstances,” rather it was to determine whether Congress had the power via the Commerce Clause to prohibit the intrastate manufacture and possession of marijuana for medical purposes legally authorized by California law. Id. at 5, 9, 15.

The Court relied on well-established precedent to conclude that Congress had the authority to regulate this “purely local activity,” since the Commerce Clause provides Congress the power to regulate activities that substantially affect interstate commerce so long as there is a rational basis. Id. at 17-22. The Court found a rational basis for prohibiting the intrastate activity, since marijuana is a fungible commodity which can cross state lines, and the “failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.” Id. at 22.

When the Court issued its opinion in Raich, at least eight other states had already joined California in permitting medical cannabis. One would have reasonably thought that Raich would have foreclosed other states from legalizing medical cannabis, and would have caused the federal government to intervene in the states with medical cannabis laws.

However, we know that is not what occurred. Despite the fact that in the years following Raich, both the Bush and Obama Administrations continued enforcement against persons involved with the medical cannabis industry, states continued to move forward with legalization. In fact, less than five years after Raich, New Jersey became the 14th state to legalize cannabis for medical purposes in 2010.

Post-’Raich’ Expansion of Legal Cannabis Through Federal Acquiescence

It is important to understand why states would continue to legalize a particular product and behavior declared illegal under a federal law found to be constitutional by the United States Supreme Court.

Although there were many forces at work, the primary driver was the public’s changing attitude toward cannabis at the local level, which compelled cities and states to react to their constituents’ desires. Gallup, for example, has been measuring the public’s view on marijuana since 1969, and it was between 2000 and 2012 that public support for legalized cannabis dramatically increased from below 34% to above 50%.

With these changing public attitudes causing state lawmakers to take action, federal policymakers were forced to evaluate their approach to CSA prosecution. As the number of states with some form of legal cannabis increased, the federal government was left with two choices—strict enforcement or tempered acquiescence. The matter eventually reached a tipping point where “enforcement prioritization” became the only path forward, despite the command of the CSA.

In October 2009, then-Deputy Attorney General David Ogden issued a memorandum to certain United States Attorneys providing guidance on these “federal enforcement priorities.” The “Ogden Memo” stated that federal resources should be directed toward conduct which is unmistakably and unambiguously not in compliance with applicable state law. While it made clear that no state can authorize violations of federal law and that guidance regarding federal resources allocation does not legalize marijuana or provide a legal defense, this document provided some justification for the states to continue their legalization efforts.

The “Ogden Memo” was subsequently followed by an August 2013 memorandum from then-Deputy Attorney General James Cole after voters in Colorado and Washington State approved legalizing cannabis for adult use. The “Cole Memo” broadly instructed all United States Attorneys that the CSA would generally not be enforced so long as a state that legalized marijuana implemented strong and effective regulatory and enforcement systems to control its cultivation, distribution, sale, and possession. Federal enforcement was limited to when federal priorities, such as prohibiting drug trafficking, were implicated.

Although the “Ogden Memo” and “Cole Memo” were briefly withdrawn under the Trump Administration, they were reinstated at the beginning of the Biden Administration, and are the present guidance to United States Attorneys.

Congress could have forced the executive branch to enforce the CSA through its spending powers, but it did not. Since 2014, Congress has actually done the opposite and added language to every omnibus spending bill prohibiting the use of federal funds for the enforcement of the CSA by states with medical cannabis laws. Known as the “Rohrabacher-Farr Amendment,” named after its two Congressional sponsors, it prevents the Justice Department from prosecuting persons who remain in compliance with their state’s medical marijuana laws.

While Rohrabacher-Farr is limited in its scope, there are two separate bills currently under discussion in Congress to legalize cannabis nationwide. The House has passed the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, while the United States Senate is seeking consensus on a bi-partisan measure, commonly referred to as the Cannabis Administration & Opportunity Act. Both remove cannabis from the list of Schedule I drugs, propose a federal cannabis excise tax, and offer relief to persons previously convicted of certain cannabis offenses. The MORE Act proposes a broader federal regulatory system for cannabis as opposed to the Senate bill, which gives greater regulatory authority to the states.

What Cannabis Legalization Demonstrates About Federalism

States legalizing cannabis contrary to federal law seemingly strikes at the very concept of federalism. While power is divided between the federal and state governments, federalism’s key tenet is that a state law must yield to a constitutionally authorized federal law. The recent history of cannabis legalization, however, illustrates a practical reality on the limits of federalism. States are indeed the laboratories of democracy, and as public sentiment changes on an issue, it is the states that are the first to act. When enough states fail to follow a federal law because of the demands of their constituency, they can make enforcement of that federal law impractical, which in turn can render that federal law de facto void.

Cannabis legalization also shows that the federal government has the capability to provide a pathway for state experimentation when public support exists, even when federal law creates a barrier. This can be facilitated by the executive branch using its enforcement discretion, or by the legislative branch exercising the power of the purse to restrain the executive branch from enforcement.

What has occurred over the past quarter-century, however, should also serve as a cautionary tale. A state law that permits or restricts its residents to act contrary to federal law sets a potentially dangerous precedent. It is reasonable to infer that the recent history of states acting contrary to the CSA provides an example for states to pass other laws contrary to federal law should their constituency demand it. This may be a classic “slippery slope” argument, but in a highly polarized and divided political climate, such events are not so far-fetched. Cannabis legalization may therefore end up being more impactful than just a change to the nation’s drug laws.

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Reprinted with permission from the July 11, 2022 issue of the New Jersey Law Journal. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.