Pubdate: Sun, 17 Aug 2008
Source: Los Angeles Times (CA)
Copyright: 2008 Los Angeles Times
Contact: http://drugsense.org/url/bc7El3Yo
Website: http://www.latimes.com/news/printedition/front/
Details: http://www.mapinc.org/media/248
Author: Kenji Yoshino
Note: Kenji Yoshino is a professor of constitutional law at New York 
University School of Law.
Bookmark: http://www.mapinc.org/topic/dispensaries
Bookmark: http://www.mapinc.org/people/Charles+Lynch
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

POT POWER PLAY

Should State or Federal Law Prevail on Medical Marijuana?

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.

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.
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MAP posted-by: Richard Lake