State Sovereignty Over Federal Drug Laws: Who Wins?

The United States' federal government began enforcing drug policies in the early 1900s, criminalizing drugs such as opium, morphine, heroin, and cocaine outside of medical use. Since then, many additional laws have been passed to regulate drugs, and the Drug Enforcement Administration was created in 1973 to enforce these laws. However, in recent times, states like Colorado and Washington have legalized marijuana, despite it being illegal under federal law. This has brought about a discussion on whether a state can ignore federal drug laws, with the DEA not taking any action against these states, leaving the nation's drug policy in limbo.

Marijuana legalization in Colorado and Washington

Marijuana legalization has been a contentious issue in the United States, with varying state and federal laws creating a complex landscape. In 2012, voters in Colorado and Washington took the bold step of approving ballot initiatives to legalize, regulate, and tax marijuana, despite federal laws prohibiting its use. This move put these states at odds with federal legislation and raised questions about the federal government's response.

The legalization of marijuana in Colorado and Washington highlighted the contradictions between state and federal drug policies in the United States. While the states pushed for legalization, regulation, and taxation, marijuana remained classified as a Schedule I drug at the federal level under the Controlled Substances Act, indicating a high potential for abuse and no accepted medical use. This discrepancy left the Drug Enforcement Administration (DEA) with the challenging task of navigating the conflicting laws.

In Colorado, the legal structure for marijuana reflected its existing, vertically integrated medical market. Vertical integration was mandated for commercial marijuana industries until October 2014, after which stand-alone producers and retailers were permitted. Pre-existing medical marijuana operators were also granted exclusive rights to licenses during the initial three months of legalization. Washington, on the other hand, prohibited vertical integration across production and sale, meaning a single entity could not produce and sell marijuana.

The impact of legalization in these states extended beyond the legal framework. Studies revealed positive outcomes in various spheres. For instance, research indicated a decrease in teen cannabis use in both states, with Colorado reporting a drop from 22% in 2011 to 13.3% in 2021, and Washington showing significant decreases across all surveyed grades. Additionally, a study published in Traffic Injury Prevention found a reduction in fatal, serious, and minor injury collisions following legalization in Washington, challenging common concerns about road safety.

The federal government's response to these states' legalization efforts remained uncertain for some time. In 2012, President Obama acknowledged the need to reconcile state and federal laws but did not outline a clear policy. While the DEA had the authority to enforce federal laws prohibiting marijuana, they initially took no action in these states, creating a sense of limbo in the nation's drug policy. However, the uncertainty surrounding federal enforcement and the potential for conflicting state and federal laws underscored the complex dynamics at play in the legalization process.

The Controlled Substances Act

The CSA places all substances under the existing federal law into one of five schedules. These schedules are based on the substance's medical use, potential for abuse, safety, and dependence liability. Schedule I contains the substances with the highest potential for abuse and harm and no recognized medical uses in the US. In contrast, Schedule V includes the least dangerous substances with known medical applications. The CSA also provides a mechanism for substances to be controlled, added to or transferred between schedules, or decontrolled. Proceedings to make such changes may be initiated by the Drug Enforcement Administration (DEA), the Department of Health and Human Services (HHS), or by petition from any interested party, including the manufacturer of a drug or a medical society.

The CSA was an effort to combine all previous federal drug laws and expand their scope, changing the nature of federal drug law policies. It eliminated mandatory minimum sentences and provided support for drug treatment and research. The CSA also included rehabilitation clauses as a compromise to senators who favored a moderate approach.

The CSA has been amended several times since its enactment. Notable amendments include the 2010 Secure and Responsible Drug Disposal Act, which allowed pharmacies to create take-back programs for controlled medications, and the 2017 Protecting Patient Access to Emergency Medications Act, which included registration for Emergency Medical Services to administer controlled substances. The CSA also added several Markush-like statements in 2012 that describe synthetic cannabinoid chemical space, which are also controlled as Schedule 1 substances.

Bipartisan agreement for change

There is a bipartisan agreement that a change is needed in federal drug policy. This shift in perspective involves a focus on prevention measures and safe access to supplies, such as needles. This less harsh approach to drug enforcement is aimed at reducing the number of drug-related deaths in the country, which stands at over 100,000 yearly deaths from drug overdoses.

Many states have passed legislation decriminalizing fentanyl testing strips, and some have legalized cannabis for adult use and medical use. The latter has been a point of contention, as cannabis possession and distribution are federal crimes under the Controlled Substances Act (CSA). However, the federal government has not actively enforced these laws in states that have legalized cannabis, creating a policy of non-interference. This non-enforcement is largely supported by the public, with polls showing that over 70% of Americans believe the federal government should not interfere with state-legal marijuana businesses.

The Controlled Substances Act (CSA) is a federal law that places substances into one of five schedules based on their medical use, potential for abuse, and safety or dependence liability. The CSA provides a mechanism for substances to be added, removed, or transferred between schedules. This process is overseen by the Drug Enforcement Administration (DEA), which is responsible for enforcing federal drug policies.

While the DEA has not taken action against states with legalized cannabis, the situation is still uncertain. The DEA's response to state-level marijuana legalization remains to be seen, and there is a possibility of legal trouble for marijuana businesses in these states. The federal government's approach to marijuana legalization is currently in limbo, and the outcome will depend on the regulations adopted by these states to implement their ballot initiatives.

The debate over federal preemption in state drug laws is complex. While the Supremacy Clause of the US Constitution states that federal law is the "supreme Law of the Land," the Tenth Amendment's "anti-commandeering rule" prevents Congress from forcing states to mirror or enforce federal policies. Additionally, the CSA only preempts state laws under very limited circumstances, such as when it is physically impossible to comply with both state and federal law.

In summary, the bipartisan agreement for change in federal drug policy reflects a shift towards harm reduction and a recognition of the need for reform. While the federal government has not actively enforced cannabis prohibition in states that have legalized it, the potential for conflict between state and federal laws remains. The outcome will depend on the specific regulations adopted by states and the federal government's response.

Federal preemption and Congressional intent

The United States federal government began enforcing drug policies in the early 1900s, criminalizing drugs such as opium, morphine, heroin, and cocaine outside of medical use. The Controlled Substances Act (CSA) places all substances that are regulated under existing federal law into one of five schedules, based on the substance's medical use, potential for abuse, safety, and dependence liability. The CSA also provides a mechanism for substances to be added, transferred, or removed from the schedules.

The question of federal preemption is primarily a question of Congressional intent. The CSA only preempts state laws under very limited circumstances. According to 21 U.S.C. 903, the CSA is not intended to preempt state drug laws unless there is a "positive conflict" between state and federal law, such that they "cannot consistently stand together." Courts have generally held that a state law is only preempted by the CSA if it is "physically impossible" to comply with both state and federal law or if the state law obstructs the CSA.

While marijuana possession and distribution are federal crimes under the CSA, Congress did not intend to preempt state drug laws, and the Tenth Amendment's "anti-commandeering rule" prevents Congress from forcing states to enforce federal policies. The federal government has never alleged in court that federal laws preempt state medical marijuana laws or legalization and regulation laws. The Department of Justice's 2013 Cole Memo formalized a policy of non-interference unless a specific federal interest is implicated. Although the memo was rescinded in 2018, the non-enforcement practice has continued under the Trump and Biden Administrations.

State Marijuana Regulation Laws

Marijuana laws are rapidly evolving across the United States, with many states decriminalizing and legalizing the drug for medical and recreational use. However, it is important to note that marijuana is still classified as a controlled substance at the federal level, and possession, sale, and use remain federal crimes. This creates a complex situation where state laws contradict federal laws, leading to legal uncertainties.

In November 2012, voters in Colorado and Washington state voted to legalize marijuana, despite federal laws prohibiting its use. This has resulted in a limbo situation, with the Drug Enforcement Administration (DEA) not taking any enforcement action in these states. The DEA's inaction could be attributed to limited resources or a wait-and-see approach, allowing them to observe the regulations implemented by these states before deciding on a course of action.

The legalization of marijuana in Colorado and Washington is not an isolated case. Other states, such as California, Illinois, and San Francisco, have also taken steps toward legalization, with varying approaches to implementing ballot initiatives and addressing previous convictions. For example, San Francisco's District Attorney's office plans to expunge approximately 9,000 marijuana possession convictions, while Illinois' bill includes a provision to automatically expunge criminal convictions for possession of small amounts of marijuana.

While the federal government's stance on marijuana remains unchanged, the rapid pace of change at the state level is notable. This has led to confusion among the public, with people struggling to understand the legal status of marijuana in their respective states. To address this, organizations like DISA have created interactive maps that provide up-to-date information on the legalization, medical use, and recreational use of marijuana in each state.

The evolving landscape of state marijuana regulation laws highlights the shifting attitudes and approaches to drug policy in the United States. While the federal government has historically enforced strict drug policies, the increasing number of states passing legislation to decriminalize or legalize marijuana indicates a growing movement towards a less harsh approach, prioritizing prevention and harm reduction.

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