Pot power play


Just because a majority of Californians voted to make marijuana available for medical purposes does not mean it is legal. Charles Lynch, the owner of a Morro Bay medical marijuana dispensary, learned this lesson the hard way on Aug. 5 when he was convicted of violating the federal Controlled Substances Act. His lawyers defended him in part by saying his business had the blessing of elected officials in Morro County. But the jury convicted him under federal drug laws; in October, he will be sentenced to a period of five to 85 years in prison, though he has vowed to appeal.

Medical marijuana: A Sunday Opinion page article on the conflict between state and federal laws regarding medical marijuana said distributor Charles Lynch claimed that his business had the blessing of officials in Morro County. The business was in the city of Morro Bay, in San Luis Obispo County. —

Federal and state laws with respect to medical marijuana have been in tension for years. Under the federal Controlled Substances Act of 1970, the distribution or possession of marijuana is a crime, with no exceptions for medical use. Under California’s Compassionate Use Act of 1996, however, individuals who meet certain criteria may distribute or use marijuana for medical purposes without running afoul of state law. In 2003, the Legislature further bolstered the medical marijuana movement with a law requiring counties to provide patients with an identification card that protects them from state prosecution.

This places dispensers of medical marijuana, such as Lynch, in an untenable position. From the perspective of the federal government, they are no different from common drug dealers, susceptible to Drug Enforcement Administration busts and substantial prison sentences. From the perspective of the state government, they are running legitimate businesses that pay taxes and otherwise comply with California law.

The courts have yet to resolve this controversy. Under the supremacy clause of the U.S. Constitution, federal law supersedes state law when the two conflict. But it is not as obvious as it might seem that they do. Language in the federal Controlled Substances Act specifies that it only preempts state laws that create a “positive conflict” with it. A court could find that because California law does not expressly prevent the federal government from enforcing its own drug law, the two sets of laws are consistent.


Indeed, on July 31, the state’s 4th District Court of Appeal took a step in that direction. It held that the Controlled Substances Act does not preempt California’s requirement that counties give medical marijuana users identification cards. The court expressly declined to go any further, but proponents of medical marijuana rightly viewed the ruling to be a significant win. If the decision withstands appeals, it will ensure that federal law will not completely wash out the state program.

But it seems unlikely that courtrooms are where this legal dissonance will be resolved. This is especially true since 2005, when the U.S. Supreme Court heard a federal constitutional challenge to the Controlled Substances Act. In that case, Californians sought to protect the use of medical marijuana by stating that it is a purely intrastate matter, and thus beyond Congress’ reach. The high court rejected that argument, ruling that, as a whole, the drug law was a proper exercise of Congress’ power to regulate interstate commerce.

After that decision, the legislative and executive branches of government are best equipped to make federal and state law consistent. The remaining question is which side -- federal or state -- should give way in this standoff.

In this instance, the federal government should cede. Under our federal system, the states are supposed to serve as laboratories of experimentation (to paraphrase Supreme Court Justice Louis Brandeis) that permit a variety of policy approaches that suit local mores. Moreover, the areas implicated by medical marijuana -- crime and health -- have traditionally been areas of state sovereignty. This perhaps explains why -- flying in the face of the Controlled Substances Act -- 13 states have passed some form of medical marijuana law.

Under the Controlled Substances Act, marijuana is grouped with heroin and mescaline in the set of drugs subject to the most stringent regulation. Congress or the U.S. attorney general has the power to reclassify marijuana so it can be dispensed by a physician. Alternatively, the U.S. Department of Justice could use its discretion and stop prosecuting medical dispensation and use in states that have legalized it. California’s Legislature has supported both alternatives, and Barack Obama, the presumptive Democratic presidential nominee, has expressed support for the latter. John McCain was equivocal early in the Republican primaries, but the candidate has since said he would not end the federal raids on medical marijuana dispensaries.

State medical marijuana laws should not be seen as an attempt to flout the authority of the federal government. These laws are a proper exercise of a state prerogative to which the federal government should defer.


Kenji Yoshino is a professor of constitutional law at New York University School of Law.