There are some new studies out challenging the traditional (federal) notion that medical marijuana does not have any medicinal value. Of note to Arizonans, a researcher out of the University of Arizona is being granted permission by the federal government permission to test if there is any medicinal value to treating veterans suffering from PTSD with medical marijuana.
In the past PTSD has been discussed as a potential candidate for inclusion among the list of “debilitating medical conditions” currently permitted by the state of Arizona for treatment by medical marijuana.
Arizona is facing growing pains while trying to embrace the voter passed law. This conflict in federal and state laws can at times create ambiguity of what is permissible regulation.
This post will take an in-depth look at some of the points of contention and the underpinning legal arguments.
At the heart of the discussion is the direct conflict between the federal Controlled Substances Act Title 21 U.S.C. § 801 et. seq. and the Arizona Medical Marijuana Act § 36-2801 et. seq. (et. seq. means there are multiple pieces in this legislation, so keep reading the next law).
Controlled Substances Act
The Controlled Substances Act (CSA) Title 21 U.S.C. § 801 establishes five schedules (levels) of controlled substances. The government made Schedule V is the least severe category and Schedule I as the most severe. Marijuana is considered a Schedule I drug, which means that it has a high potential for abuse, has no medicinal value, and cannot be used safely even under a doctor’s supervision. The federal government thinks with the current scientific information known about Marijuana that there is little to no redeeming value for the drug.
Arizona on the other hand found some medicinal value in marijuana when the majority of the state’s voters passed the law. Proponents of the state enacted legislation say it is within the traditional power of the state to define health care treatments.
The CSA makes it unlawful to knowingly or intentionally, manufacture or create with the intent to distribute, Title 21 U.S.C. § 841. This means that any cultivation or distribution (medical marijuana dispensaries) are in violation of the federal law.
Arizona Medical Marijuana Act
In 2010, the voters of Arizona approved Proposition 203 by just more than 50% of the vote. The law is codified as the Arizona Medical Marijuana Act (AMMA), § 36-2801 et seq. Arizona is currently one of twenty states that permit medical marijuana usage.
The law removes state level criminal penalties for the use and possession by patients who have “written certification” from their doctor for the state-approved conditions. Only individuals “debilitating medical conditions” are eligible candidates for medical marijuana. Arizona classifies cancer, glaucoma, positive status for HIV, AIDS, hepatitis C, ALS, crohn’s disease, and agitation of alzheimer’s disease as qualifying conditions. This list is not set in stone because § 35-2801.01 permits the public to petition the Arizona Department of Health Services to include additional medical conditions.
An interesting part of this law is that is that “qualifying patients” eligible to fill prescriptions is not limited to citizens of Arizona. Section 36-2801(17) of the statute carves out room for “visitors” to the state. In theory a person who visiting the state and has previously been diagnosed with a debilitating medical condition, could get their prescription filled while in Arizona. It is unclear how this works in practice.
The statute also sets limits on how much marijuana a qualifying patient may have at any one time. Any one individual with a state issued medical marijuana card may two and a half ounces of marijuana. Then additionally, if the state issued medical marijuana card indicates it, an individual may also may grow up to twelve plants.
The rights of medical marijuana users are protected against discrimination because of usage. Among the listed protections listed in § 36-2813 are in housing, employment, and in child custody disputes. This is an important area of the law because even though the majority of Arizonans passed legislating approving medical marijuana, not everyone may share the same views and could try to discriminate against qualifying patients.
There is much more that goes into Arizona Medical Marijuana Act. I just tried to detail what I viewed as the major parts of the legislation.
Arizona Attorney General Opinion
Predictably, when the Arizona Medical Marijuana Act passed there was some apprehension with how, or if, the state law could be reconciled with the federal Controlled Substances Act. Consequently, many County Attorneys from across Arizona asked the Arizona Attorney General to give his official opinion on behalf of the State on the legal implications.
Attorney General Opinions are issued when requested by the legislature (or either house of the legislature), any public officer of the State, or a county attorney, on a question of law relating to their office. The opinions are of public record in which the public can access and read via the Internet. Arizona Attorney General Tom Horne obliged the requests and gave his opinion.
The issue considered is whether the federal law trumps the state law. The AG Tom Horne concludes that part of the law is in conflict, and part of the law is not.
The AMMA provisions and related rules that pertain to the issuance of registry identification cards for patients and caregivers are not preempted because they merely serve to identify those individuals for whom the possession or use of marijuana has been decriminalized under state law and, therefore, not authorizations to violate federal law.
Horne’s analysis is centered on the Supremacy Clause of the United States Constitution. His legal reasoning is murky, but the case law he cites provides a nice legal analysis.
The Supremacy Clause states that federal law and U.S. treaties are the supreme law of the land, U.S. Const. art. VI, cl. II. This only applies if the laws conflict with each other. So the next step is to see if they conflict, or when the local law is preempted by the federal law.
In Attorney General Horne’s analysis he determines the AMMA is preempted only when it authorizes cultivation, selling and dispensing of marijuana. Horne claims the rules regulating ID cards for patients and caregivers “are not preempted because they merely serve to identify those individuals for whom the possession or use of marijuana has been decriminalized.”
If this does not explain a whole lot, do not feel bad. I feel as if Attorney General Horne’s analysis is rather conclusory, and really does not provide a lot of substance. I will try to fill in some of that substance here.
There Supreme Court has denoted several types of preemption. These look at the express language, if there is any conflict between the two pieces of legislation, if the state legislation creates an obstacle to adhere to the federal legislation, and if they are both occurring in the same field. Other than looking at the express language, the other three types of preemption are implied preemption. Because the court is not looking at the direct language in each of the bills to see if there is a problem, they look to outside factors like the intent of each legislative body. The Supreme Court currently adopts this ideology.
However, there is a minority of justices / courts whose judicial philosophy is only to look at the express language of the statutes. They arguing that looking away from the statutory text to make the determination is “inconsistent with the Constitution.” Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in judgement).
The express clause the courts are concerned with is:
No provision of this subchapter 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 which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.
— Pack v. Superior Court, 132 Cal. Rptr. 3d 633, 648 (Ct. App. 2011) review granted and opinion superseded sub nom. Pack v. S.C., 268 P.3d 1063 (Cal. 2012).
Because of that provision which is found in the Controlled Substances Act, Title 21 U.S.C. § 841 the question of what is in the authority of the state must be established. However, there is a presumption against preemption in areas traditionally regulated by the state. Hernandez-Gomez v. Leonardo, 917 P.2d 238, 242-43 (Ariz. 1996). There are a few areas of the Controlled Substance Act that are traditionally controlled by the state.
Regulation of medical practices is typically governed by each individual state. State v. Borah, 76 P.2d 757, 758 (Ariz. 1938). In present society, it is up to each individual state to license doctors through its state medical boards. If a doctor wants to practice in more than one state, she must be licensed in each state that she practices in. Thus, it is up to each state to set their own medical practices.
Land use regulation is typically a state controlled function as well. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 82 (1946). Whether it is an issue of zoning or safety regulations, these are typically powers left to the state.
Since the state decriminalized marijuana for qualifying individuals, the act can coincide with the federal legislation.
An example of what is not permissible is to legislate that marijuana be must be tested. A local government “cannot compel permitted collectives to distribute marijuana for testing any more than it can compel a burglar to commit additional acts of burglary.” Pack v. Superior Court, 132 Cal. Rptr. 3d 633, 650 (Cal. Ct. App. 2011) review granted and opinion superseded sub nom. Pack v. S.C., 268 P.3d 1063 (Cal. 2012). This would be considered distribution because testing facilities are not the targets of the legislation. Furthermore, I would argue that testing of drugs is typically a federal power conducted through the Food and Drug Administration, falling outside the state’s police powers.
This is a very complex issue. I hope I provided a reader into some of the basic legal considerations and arguments about medical marijuana on the state level.