Medical Marijuana Preemption Issues:
A Guide for the Perplexed
Robert A. Mikos
Five types of state medical marijuana
laws, organized by function
1. Legalize—shield user / supplier from state
imposed criminal / civil sanctions
2. Administer—help state determine whether user
/ supplier exempt from sanctions
3. Restrict—limit what legal user / supplier may do
4. Protect—shield user / supplier / etc. from
privately imposed sanctions
5. Provide—provide marijuana directly to residents
The CSA’s preemption clause
“No provision of this title 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 . . . unless there is a positive conflict
between that provision of this title and that
State law so that the two cannot consistently
stand together” (§ 903)
Preemption rules
1. Conflict
a) Impossibility—impossible to comply with both
state and federal law
b) Obstacle—state law undermines congressional
objective
2. Field
3. Sui generis
State laws obviously pose obstacle . . .
Passage of state laws has increased the
consumption, cultivation, and distribution of
marijuana:
1. Eliminated state sanctions
But not every obstacle can be preempted
2. Eliminated some private sanctions
And some, Congress might not want to preempt
3. Softened fears of marijuana, etc.
4. Not yet but . . . some states have proposed
directly providing / subsidizing marijuana
The anti-commandeering rule limits
Congress’s preemptive power
§ 1: The possession , cultivation, or distribution of marijuana is
a felony, punishable by a term of imprisonment and fines
[adopted, 1937]
§ 2: A defendant who possess, cultivates, or distributes
marijuana for purely medical purposes may raise an
affirmative defense to a charge brought under § 1 [adopted,
2012]
§ 3: The affirmative defense created by § 2 shall only be
available to persons who have obtained a valid medical
marijuana ID card or license from the State Department of
Health [adopted 2012]
Five types of state laws . . .
1. Legalize—shield user / supplier from state
imposed criminal / civil sanctions
2. Administer—help state determine whether user
/ supplier exempt from sanctions
3. Restrict—limit what legal user / supplier may do
4. Protect—shield user / supplier / etc. from
privately imposed sanctions
5. Provide—provide marijuana directly to residents
Congress limited the CSA’s preemptive
reach
“No provision of this title 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 . . . unless there is a positive conflict
between that provision of this title and that
State law so that the two cannot consistently
stand together” (§ 903)
Protections against private sanctions
• Landlord-tenant law?
– CSA bars LL from renting to drug suppliers
– If state bars LL from evicting, it would force LL to
violate the CSA
• Employment law?
– State employment protection clearly facilitates
“drug abuse”
– But CSA doesn’t regulate employment of drug
abusers / suppliers
The preempted status of state laws
1. Legalize—shield user / supplier from state
imposed criminal / civil sanctions
2. Administer—help state determine whether user
/ supplier exempt from sanctions
3. Restrict—limit what legal user / supplier may do
4. Protect—shield user / supplier / etc. from
privately imposed sanctions
5. Provide—provide marijuana directly to residents
Some references
• On the Limits of Supremacy: Medical Marijuana and
the States’ Overlooked Power to Legalize Federal
Crime, 62 Vanderbilt Law Review 1421 (2009)
• A Critical Appraisal of the Department Of Justice’s New
Approach to Medical Marijuana, 22 Stanford Law &
Policy Review 633 (2011)
• State Taxation of Marijuana Distribution and Other
Federal Crimes, 2010 University of Chicago Legal Forum
223 (2010)
• Can States Keep Secrets from the Federal Government?
151 University of Pennsylvania Law Review ___
(forthcoming 2012)