Federal v. State Law Marijuana Legalization
Can states legalize marijuana while it remains illegal under federal law? Is medical marijuana a loophole to get around the federal law?
Marijuana is a hemp plant called Cannabis Sativa. It is available in the forms of dried leaves, flowers, stems, and seeds. The resinous concentrate obtained from the plant is known as Hash Oil. Marijuana is an annual crop plant. It grows from seeds in open areas exposed to sunlight. It germinates within a week and attains its full growth in 4 to 8 months. Marijuana contains medicinally active compounds that act on the brain. The main active compound is delta-9-tetrahydrocannabinol (THC). THC related compounds (cannabinoids) are also medicinally active. These compounds are called cannabinoids. The THC content varies according to the source of cannabis and its preparation.
Nonmedicinal effect of marijuana is the intoxication it can produce. Marijuana is rolled as cigarettes and smoked. The odor of the smoke is distinct, pungent, and sweet-and-sour. Marijuana is consumed along with food, and its decoction is served as tea. All variants of marijuana produce initial excitement followed by depression.
Marijuana is used in Ayurveda for its medicinal properties. Its derivatives act as analgesic, anti-inflammatory, hallucinogenic, and sedative. Marijuana is recommended in cancer chemotherapy as an antiemetic and for treating glaucoma. Marijuana plant in Ayurveda is used for its hallucinogenic, hypnotic, sedative, analgesic, and anti-inflammatory properties. .
Medical marijuana or medical cannabis is available as leaves and flowering tops. Medical marijuana is a schedule I drug. Derivatives of cannabis or marijuana are in use for their medicinal actions in United States and Canada for a long time. Such derivatives are dronabinol and nabilone that are schedule III and schedule II drugs respectively. Another derivative ‘nabiximol’ has not been approved by the USFDA. The nature of formulation and patient’s character influence the pharmacological actions of cannabinoid compounds. The cannabinoid receptors CB1 and CB2 respond differently. The cannabinoid delta-9-tetrahydrocannabinol exerts primary psychoactive actions. Cannabinoid derivatives dronabinol and nabilone are used for treating nausea and vomiting during cancer chemotherapy. It is also given to patients suffering from anorexia due to acquired immune deficiency syndrome. Cannabis compounds are recommended for treating pain and muscle spasms.
Thus, Marijuana has medical uses as well as negative intoxicating and psychotropic effects. Marijuana’s abuse results in psychomotor impairment that carries high risk of road, rail and air traffic accidents. Chronic use ends up with dependence, withdrawal symptoms and cognitive impairment. The continued usage of marijuana causes respiratory, cardiovascular and other health problems. In spite of the ill effects of marijuana’s abuse and addiction, the derivatives of marijuana have shown promising results and potency to treat many diseases and disorders.
All the States have banned the cultivation, distribution, and possession of marijuana for non-medical purposes. Any violation of these rules will invite criminal action on the offender. Very few states have decriminalized minor marijuana offenses such as possession of an ounce or less irrespective of the intended use. Yet, marijuana use remains prohibited in those states. Minor offenses continue to attract civil actions while serious offenses attract criminal actions. Recently medical exemptions have been enacted. Barring these, marijuana is still a prohibited drug and hence it is a criminal drug at the state level. Notwithstanding this tough stance against recreational marijuana, many states have since enacted laws legalizing marijuana for medical purposes. California initiated this reform in 1996 in the name of Compassionate Use Act. Subsequently, 12 States have followed suit permitting residents to possess, use, cultivate, and sometimes distribute marijuana for medical purposes, and some more states are waiting in the wings. Although exemptions vary, all the thirteen states have common criteria for being qualified to use the drug. The medical marijuana user must have a debilitating medical condition as diagnosed by a physician as part of his bona fide medical test. The qualifying conditions are cancer, glaucoma, AIDS, and other chronic diseases that are associated with symptoms of severe pain, nausea, seizures, or persistent muscle spasms. Apart from the diagnosis of qualifying condition, the states rules require a genuine user to obtain his/her recommendation to use marijuana. This is not necessarily to be a prescription. The physician has to state that use of marijuana is unavoidable after ruling other treatment options. In all states except in California, the recommendation has to be in writing. In California, it is enough if it is an oral recommendation. Ten of the states require the intending user and in some cases caregivers and suppliers to register with the State before using it. If a person fails to register, ex-ante cannot claim exemption in subsequent criminal investigation even if he satisfies all other requirements for exemption. The remaining three States of California, Maine, and Washington have no stringent requirement once the users are in the possession physician diagnosis and recommendation. The State will issue an identification card upon receipt of an application to the user, and the designated caregiver. The registration has to be reviewed every year. Thus, medical marijuana affords legal protection for qualified patients who are exempt from arrest and prosecution. This is the reason it can be stated that marijuana is legalized by the said states by not mere decriminalization of it. States also help qualified patients recover any marijuana seized by enforcement agencies as part of their investigation. States also help those possessing, using, or cultivating marijuana by complying with state laws by barring the landlords from terminating the lease of any person for marijuana possession, usage or cultivation.
Controlled Substances Act (CSA) 1970 is a federal legislation. It regulates the manufacture,
Possession and distribution of drugs including marijuana. Marijuana is placed on Schedule I
which is the most severely restricted category on the premise that marijuana has no proven medical use and is a highly misusable drug. It is, therefore, forbidden to manufacture, posses and distribute marijuana at the federal level subject to a few exceptions that it can be used for medical treatment. The University of Mississippi is the only approved by the Federal government for growing marijuana under the compassionate use program of President Carter. This program is no longer accepting new applications since 1992. In fact, only eight patients are receiving marijuana through the University out of 36 patients enrolled under the program. Another way to get marijuana under federal law is to participate in an FDA-approved research study. Even that has been limited 11 research projects since 2000 as the FDA does not adopt a liberal approach in this connection. The Federal government has always refused to allow legal access to marijuana. The Congress has many a time rejected to reschedule the drug or not to enforce CSA against persons using marijuana under State law. Although it is a fact that the drug is harmless when used by those severely ill, the Congress justifies the ban based on several firmly rooted beliefs such as marijuana’s therapeutic properties are still unproven, it is harmful to users and third parties, permitting it for medical purposes is a message that it can be safely used for other purposes as well, and that marijuana grown for medicinal purposes will be diverted for sale in black market. Punishments prescribed under the CSA are quite severe. Simple possession constitutes a misdemeanor and can be punished with one-year imprisonment and a minimum of $ 1,000 fine with costs. Those with prior records are liable to tougher sanctions. One prior conviction can lead to 2 year's imprisonment and $ 2,500 fines. Second conviction leads to maximum three years imprisonment and $ 5,000 fine. A minor drug conviction can result is severe collateral sanctions under both state and federal law, including severance of student financial aid and public assistance. Those cultivating, manufacturing, distributing or possessing can be charged for felony resulting in maximum prison term of five years and $ 250,000 fine for individuals and $ 1 million for entities, and all these can be doubled. Sanctions will increase proportionately with the increase in quantities. Cases of more than 50 kilograms or more than fifty plants can result in a conviction of maximum 20 years without aggravating factors and a fine of $ 5 million. If the quantity is more than 100 kilograms, it can be a maximum of a life sentence and a fine of $ 10 million. If it involves massive quantities of 1000 kilo grams or 1,000 plants, maximum life sentence and fine of $ 20 million can be imposed. So the federal ban is not likely to be diluted at all. Those who oppose ban question the constitutional authority over the regulation of marijuana. Gonzales v. Raich (2005), challenged the constitutional authority of Congress which stems from the outermost bounds of Commerce Clause Authority of the Congress. In a 6-3 decision, the challenge was rejected as the court found that non-commercial and intrastate activities were of the defendants were inextricably connected with the drug trade. Congress's dominion over the intrastate trade required the control of marijuana as well.
While thirteen states have legalized the use of marijuana for medical purposes, the federal government has banned the drug itself which the Supreme Court has affirmed as to the constitutionality of the ban. The question is whether States are allowed to legalize something that Congress forbids. And whether state laws actually are relevant. Legal scholars opine that the CSA has preempted the State laws. Pre-emption doctrine is explained by a leading scholar Caleb Nelson that if state law allows something which the federal law prohibits or disallows something which federal law permits, then courts would have to use the Supremacy clause in trying to choose between a federal rule and a state rule. Nelson certainly did not have Marijuana in mind when he explained the preemption doctrine. Therefore, state laws are unenforceable if not in alignment with that of federal laws. However, it is argued that states de jure and de facto power to legalize marijuana are in order. The state medical marijuana laws can survive the preemption argument. The Congress has not preempted and will not preempt states’ medical marijuana laws. The anti-commandeering rule allows a behavior to go unpunished. The anti-commandeering doctrine actually constrains the preemption power of the Congress although the power of Congress is expansive. But, it is not co-extensive with substantive powers of regulating interstate commerce. As such, the preemption power is constrained by the Supreme Court's anti-commandeering rule which states that Congress may not command states legislatures to enact laws nor ask state officials to administer them.
Conclusion
The question is whether the States can overcome federal law under the pretext of legalizing medical purposes of marijuana. As argued by Mikos, the anti-commandeering rule should justify the States to legalize a genuine purpose which constrains the preemption power of the Congress. While interstate commerce is the domain of the Federal government, the state has an obligation to look after the welfare of its subjects. In that connection, if a law is passed by the State, the congress can ill afford to undo it in spite of its preemption powers.
Works cited
Ashton, C.Heather. "Pharmacology and effects of cannabis: a brief review." The British Journal of Psychiatry 178 (2001): 101-106. Print.
Borgelt, LM, et al. " The pharmacologic and clinical effects of medical cannabis." Pharmacotherapy 33.2 (2013): 195-209.Print.
Gonzales v. Raich . No. 545 U.S. 1 . U.S. Supreme Court . 2005.Print.
Mikos, Robert A. "On the Limits of Supremacy: Medical Marijuana and the States' overlooked Power to Legalize Federal Crime." Vanderbilt Law Review 62 (2009): 1421-1482. Print.
NIH. "DrugFacts:," 2014. National Institute of Drug Abuse. 29 Nov 2014 <http://www.drugabuse.gov/publications/drugfacts/marijuana>.Web.
Rajasekar, Saha. "Marijuana (Cannabis): Its Illusion And Information." International Journal of Pharma and Bio Sciences 3.1 (2012): 190-200.Print.
