On the limits of supremacy: Medical marijuana and the states' overlooked power to legalize federal crime

Vanderbilt Law Review

Volumn 62, Issue 5, 2009, Pages 1419-1482

  Mikos, Robert A ^a  

^a VANDERBILT UNIVERSITY   (United States)

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EID: 73249153698     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (336)

1. For a classic example, see Gibbons v. Ogden, 22 U.S. 1 (1824), holding that federal law barred state injunction blocking the navigation of vessels licensed under a federal statute. For a more contemporary one.
2. see Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008), holding that federal law barred state common-law claims challenging the safety or effectiveness of a medical device approved by the Food and Drug Administration.
3. By legalize, I mean the government permits some private conduct to occur free of legal sanctions, both civil and criminal. It means something more than decriminalize, which merely removes the threat of criminal sanctions. States can legalize conduct by repealing existing sanctions or by failing to enact sanctioning legislation in the first instance. In either case, the legal status of state law is the same, though the former method of legalization may have more practical impact than the latter, for reasons discussed in Part IV.B. I thank Bill Funk for bringing the distinction to my attention.
4. 545 U.S. 1 (2005). For commentary on the Raich decision, see, for example, Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the 'Federalist Revival' after Gonzales v. Raich, 2005 Sup. Ct. Rev. 1.
5. Raich, 545 U.S. at 49 (O'Connor, J., dissenting) (suggesting the Court's holding "threatens to sweep all of productive human activity into federal regulatory reach").
6. For example, Professor Susan Klein suggests that the Court must rein in federal power when Congress passes a law that bans an activity (such as the use of medical marijuana) that a minority of states allow, in order to preserve independent state norms. She reasons that without the Court's protection, independent state norms would disappear. Susan R. Klein, Independent- Norm Federalism in Criminal Law, 90 CAL. L. REV. 1541, 1564 (2002) ("[W]hen a state chooses to pursue an independent moral norm and makes that choice clear to its citizens some citizens will engage in this behavior [but if) this same behavior is criminalized federally the behavior will be chilled."). See also sources cited infra, Part II.D (reflecting common belief that state medical marijuana laws have been preempted by the Controlled Substances Act or are otherwise ineffectual).
7. California( 1996); Oregon (1998); Washington (1998); Alaska (1999); Maine (1999); Colorado (2000); Hawaii (2000); Montana (2004); Nevada (2004); Vermont (2004).
8. See generally Marijuana Policy Project, State-by-State Medical Marijuana Laws (2008), http://www.mpp.org/assets/pdfs/download-materials/SBSR-NOV2008.pdf html (last visited Oct. 9, 2009).
9. Rhode Island passed its own compassionate use act in January 2006, 2005 R.I. Pub. Laws, Ch. 5, §442.
10. New Mexico followed suit in April 2007, 2007 N.M. Laws 210.
11. in fall 2008 Michigan became the thirteenth state to legalize medical marijuana, Michigan Medical Marijuana Act, mich. COMP. laws § 333.26421 (2008).
12. Nineteen state legislatures considered proposals in 2008 to legalize medical marijuana. Marijuana Policy Project, supra note 6, at 12-13.
13. New York v. United States, 505 U.S. 144, 188 (1992) (holding that Congress may not order state legislature to enact laws). I explain why preemption sometimes constitutes impermissible commandeering in Part II.A, infra.
14. Federal Bureau of Investigation, Uniform Crime Reports: Crime in the United states (2007), available at http://www.fbi.gov/ucr/cius2007/index.html.
15. I demur on the substantive question whether marijuana should be allowed as medicine. Marijuana's harms and benefits have been catalogued and debated extensively elsewhere. For an excellent, unbiased review of the scientific literature on marijuana's beneficial and harmful effects, see INSTITUTE OF MEDICINE, MARIJUANA AND MEDICINE: ASSESSING THE SCIENCE BASE, 83-136 (1999).
16. For example, in a February 2009 press conference, Attorney General Eric Holder suggested that DEA raids of California medical marijuana dispensaries should stop. Bob egelko, feds hint no more raids on pot clubs in state, S.F. Chron., Feb., 27, 2009, at Al., at Al. He has stopped short of claiming that the federal ban would be lifted altogether.
17. Id.
18. See also Solomon Moore, Prison Term for a Seller of Medical Marijuana, N.Y. Times, June 12, 2009, at A18 (reporting that twenty-five federal criminal cases against medical marijuana dispensaries in California remained pending even after Attorney General Holder suggested the federal government would no longer target such dispensaries).
19. See, e.g., Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 959 (Mass. 2003) (recognizing state constitutional right to same-sex marriage and noting the Massachusetts Constitution is more protective of personal freedoms than is the federal Constitution).
20. GUTTMACHER INSTITUTE STATE POLICIES IN BRIEF: AN OVERVIEW OF ABORTION LAWS (2009) available at http://www.guttmacher.org/statecenter/spibs/spib-OAL. pdf (reporting that only sixteen states ban partial birth abortions outright).
21. BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS, STATE LAWS AND PUBLISHED ORDINANCES - FIREARMS (28th ed. 2007) (compiling state laws pertaining to firearms, including state laws that allow the possession and transfer of certain machine guns proscribed by federal law). For a brief discussion of the sports gambling issue, see infra notes 208-212 and accompanying text.
22. For a contemporary survey of state marijuana laws concluding that "virtually no state recognizes legal possession or use of any 'recreational drug' see national survey of state laws 163 (Richard A. Leiter, ed., 4th ed. 2003). For more exhaustive discussions of the history of marijuana regulation in the United States, see richard J. bonnie & charles H. whitebread, II, The Marihuana Conviction (2d ed. 1999).
23. LESTER GRINSPOON, JAMES B.BAKALAR, MARIHUANA THE FORBIDDEN MEDICINE (1993).
24. DAVID MUSTO, The American Disease: Origins of Narcotics Control,( 3d ed. 1999).
25. See Office of National Drug Control Policy, Who's Really in Prison for marijuana 14 (2005) (noting at the time that Colorado, Maine, Nebraska, New York, and Ohio treat simple possession as a civil offense).
26. 1996 Cal. Legis. Serv. Prop. 215 (West) (codified at Cal. HEALTH & SAFETY code §§ 11362.5 et seq. (2009)).
27. See supra notes 6-7.
28. See supra note 8.
29. E.g., ALASKA STAT. § 17.37.070(4) (1999) The list is far from static, since most states allow patients or doctors to petition to have new conditions added.
30. Id.
31. California's list is more open-ended.
32. It covers any condition for which marijuana may, in the opinion of the treating physician, provide relief. Cal. Health & Safety Code§ 11362.5(b)(1)(A).
33. Wash. Rev. Code § 69.51A.010 (2007), A few states set a (slightly) higher threshold for issuing a recommendation, by requiring the physician to certify that the benefits of marijuana use outweigh the risks.
34. HAW. REV. STAT. ANN. tit. 19 § 329-122(a)(2) (Michie's 2008).
35. E.g., Wash. Rev. Code § 69.51A.010.
36. Cal. Health & Safety Code § 11362.5(d) (requiring the "written or oral recommendation or approval of a physician").
37. N.M. CODE. R. § 7.34.3.3,2008 (noting one purpose of registration is to prevent abuse of medical exemptions). A few states require caregivers to register separately
38. e.g., HAW. REV. STAT. Ann. § 329-123, but caregiver registration will not be discussed separately here.
39. E.g., ALASKA Stat. § 11.71.090(a) (2009) (registration is essential; no defense of medical necessity without it). In a few states that seem to require registration, the requirement has not yet been fully tested (e.g., it's not clear whether otherwise qualified patients will necessarily be barred from asserting the defense if they failed to pre-register).
40. WASH. REV. CODE § 69.51A.040 (person who meets requirements under statute may raise affirmative defense against marijuana charge).
41. ME. REV. STAT. Ann. tit. 22, § 2383-B(5) (2006) (same)
42. People v. Mower, 28 Cal. 4th 457, 464, 482(2002) (in order to dismiss drug charges, defendant need only raise a reasonable doubt as to his/her qualifications under California CUA). California has recently adopted a voluntary ID card program, under which medical marijuana users can obtain an ID card to enable them to prove their eligibility for the state's exemption more easily. To obtain the card, users must submit required documentation to a county health department for review, but the program is not mandatory.
43. CAL. HEALTH & Safety Code § 11362.71(f).
44. Minors must usually take additional steps in order to use marijuana for medical purposes with the state's blessing. The minor's physician must advise him/her of the risks of using marijuana; at least one parent (and sometimes both) must consent in writing; and a parent must agree to serve as the minor's caregiver and supervise his/her use. E.g., MONT. CODE Ann. § 50-46-103(3) (2009).
45. Id. § 50-46-103(2).
46. Oregon even requires the patient to indicate on the form where she will obtain her marijuana. OR. REV. STAT. § 475.309(6)(a)(D) (2007).
47. The states do not simply rubber stamp applications. New Mexico's regulations detail the steps that registration states commonly take to screen applications. N.M. CODE R. § 7.34.3.9 (2008).
48. E.g., Mont. Code Ann. § 50-46-103(6) (1999).
49. ALASKA STAT. § 17.37.010(k) (annual renewal required)
50. HAW. REV. ST. ANN. § 329-123(b) (registration valid as long as physician certifies).
51. E.G., ALASKA STAT. § I7.37.0iu(k)-(1).
52. COLO. CONST, art. XIII § 14(4)(a) (patients may possess up to two ounces of usable marijuana and up to six plants).
53. ME. REV. STAT. ANN. Tit. 22 § 2383-A(3),(2006) (2.5 ounces usable marijuana and six plants)
54. NEV. REV. STAT. ANN.§ 453A.200(3)(b) (Michie's 2005) (patient and caregiver may possess combined total of one ounce usable marijuana and seven marijuana plants).
55. Oregon's limits are notably generous (twenty-four ounces of usable marijuana and six mature marijuana plants, OR. REV. STAT. § 475.320(l)(a). California's legislature only recently attempted to impose quantity restrictions on users - eight ounces of usable marijuana, six mature plants, and twelve immature plants per person - but the restrictions have been held up in court challenges.
56. E.g., People v. Kelly, 77 Cal. Rptr. 3d 390, 399 (Cal. App. 2d 2008) (holding that legislated quantity limits constituted unconstitutional amendment of 1996 referendum because the original law passed by the voters imposed none).
57. WASH. REV. CODE, § 69.51A.010 (physician determines what constitutes a sixty-day supply for patient).
58. N.M. STAT. ANN. § 26-2B-3 (West 2008) (ninety-day supply).
59. N.M. STAT. Ann. § 26-2B-5(A) (barring use of marijuana in all public places, schools, and workplaces).
60. N. M. STAT. Ann. id. § 26-2B-4(A) ("A qualified patient shall not be subject to arrest, prosecution or penalty in any manner for the possession of or the use of marijuana if the quantity of cannabis does not exceed an adequate supply.").
61. E.g., id. § 26-2B-4(G) ("Any property interest that is possessed, owned or used in connection with the medical use of cannabis. shall not be forfeited under any state or local law. ").
62. E.g., id. § 26-2B-4(G) ("Cannabis, paraphernalia or other property seized from a qualified patient. in connection with the claimed medical use of cannabis shall be returned immediately upon the determination that the qualified patient. is entitled to the protections of the [New Mexico] Compassionate Use Act.").
63. OR. REV. STAT. § 90.396(l)(f)(B)(i), 2007 States have been somewhat reluctant to grant patients comparable protection from adverse employment actions.
64. Compare Ross v. RagingWire Telecomm., Inc., 174 P.3d 200, 205 (Cal. 2008) (California CUA doesn't protect qualified patients from employment sanctions), with Emerald Steel Fabricators, Inc. v. Bureau of Labor and Indus., 186 P.3d 300, 308 (Or. Ct. App. 2008) (Oregon law bars employer from terminating qualified patient who uses marijuana outside of workplace).
65. Vik Amar, The California Supreme Court's Decision on Whether an Employee Can Be Fired For Testing Positive for Off-the-Job, Doctor-Suggested Medical Use of Marijuana, FLNDLAW WRIT Feb. 1, 2008, , (criticizing California court's refusal to recognize employment protection for beneficiaries of state's medical marijuana law),tp://writ.news.findlaw.com/amar/20080201.html.
66. Alaska Stat., § 11.71.090(a)(3).
67. COLO. REV. STAT. ANN.§ 14-2-b (LexisNexis 2008).
68. NEV. REV. STAT. ANN. § 453A.200(3).
69. These caregivers are largely unregulated.
70. almost any adult who has not been convicted of a serious drug offense may serve as a caregiver.E.g.NEV. REV. STAT. ANN. § 453A.210(5) (caregiver must be eighteen years old with no prior drug trafficking conviction). No license is required for the job, though some states do require caregivers to register with the state and some limit the number of patients that each caregiver may serve.
71. ALASKA STAT.§ 17.37.010(d) (each caregiver may serve only one qualified patient)
72. HAW. REV. Stat. Ann. §§ 329-121, 123(c) (same).
73. E.g., ALASKA STAT. § 17.37.040(a)(3).
74. N.M. STAT. ANN. § 26-2B-4(F) ("A licensed producer shall not be subject to arrest, prosecution or penalty, in any manner, for the production, possession, distribution or dispensing of cannabis pursuant to the. Compassionate Use Act.").
75. OR. REV. STAT. § 475.304.
76. OR. REV. STAT. § 475.304 (growers may be reimbursed only for the cost of materials and utility bills, and not their labor); id. § 475.320(c) (each grower may serve only four qualified patients); N.M. CODE R. § 7.34.4.8 (Licensed growers must be non-profit and may not provide volume discounts).
77. Or. REV. STAT. § 475.304 (growers may be reimbursed only for the cost of materials and utility bills, and not their labor); id. § 475.320(c) (each grower may serve only four qualified patients); N.M. CODE R. § 7.34.4.8 (Licensed growers must be non-profit and may not provide volume discounts); id. (licensed growers may not possess more than ninety-five plants at any time).
78. CAL. health & safety CODE § 11362.765, subdiv. § 1(b)(3) (exempting cooperatives that grow marijuana on behalf of qualified patients from legal sanctions).
79. EDMUND G. Brown JR., GUIDELINES FOR THE SECURITY AND NON-DLVERSION OF MARIJUANA GROWN FOR MEDICAL USE for a discussion of guidelines concerning marijuana cooperatives. A few cities/counties do attempt to impose some restrictions on marijuana cooperatives, such as limiting the number that may operate and barring use of marijuana on premises.
80. See Americans for Safe Access, Local California Dispensary Regulations, http://www.safeaccessnow.org/article.php?id=3165 flast visited Sept. 12, 2009) (providing links to local ordinances).
81. Danny Hakim & Michael M. Grynbaum, Legislators Grapple Over How to Legalize Medical Marijuana Use, N.Y. TIMES, June 14, 2007, at B5 (discussing New Mexico proposal)
82. Letter from Roy E. McKinney, Dir., Maine Drug Enforcement Agency, to Sen. Susan Longley and Rep. Thomas Kane (May 1, 2001) (on file with author) (discussing Maine proposal). A few cities have likewise considered growing marijuana for patients. San Francisco's Measure S actually passed in 2002, but it has never been implemented.
83. Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No.91-513, 84 Stat. 1236 (1970) (codified as amended at 21 U.S.C. §§ 801-971).
84. U.S.C. §§ 811-812 (2007).
85. Id. § 812(b)(1). To give some perspective on the seriousness of this classification, consider some of the other notable drugs that have been placed on Schedule I - heroin, Ecstasy, LSD, GHB, and peyote - and a few that have not - cocaine, codeine, OxyContin, and methamphetamine (all on Schedule II). 21 C.F.R. §§ 1308.11-12 (2008).
86. U.S.C. §§ 841, 844.
87. Id. § 829 (detailing conditions under which Schedule II-V drugs may be prescribed).
88. Grinspoon & Bakalar, supra note 14, at 21 (discussing history of the Investigational New Drug program).
89. grinspoon & Bakalar, supra note 14, at 21 (discussing history of the Investigational New Drug program); Andrew J. LeVay, Note, Urgent Compassion: Medical Marijuana, Prosecutorial Discretion and the Medical Necessity Defense, 41 B.C. L. Rev. 699, 705 (2000) (discussing participation in the program).
90. See Drug Enforcement Agency, Lyle Craker: Denial of Application, 74 Fed. Reg. 2101 (Jan. 14, 2009) (noting that at any given time about 500 persons use marijuana in federally approved studies).
91. cong. Rec. H8467-02 (2007) (reporting that House rejected 262-1165 an amendment that would have barred federal law enforcement agencies from using appropriated funds against persons using marijuana legally under state law).
92. The CSA grants the Attorney General the power to reschedule drugs.
93. The CSA grants the Attorney General the power to reschedule drugs; rescheduling petitions must first pass through the DEA. 21 U.S.C. § 811.
94. Alliance for Cannabis Therapeutics v. Drug Enforcement Agency, 15 F.3d 1131 (D.C. Cir. 1994) (denying rescheduling petition and discussing history of such efforts).
95. The federal courts could, in theory, create a medical marijuana exemption by recognizing a defense of medical necessity to the CSA.
96. United States v. Bailey, 444 U.S. 394, 415 1980, (suggesting, in dicta, that courts retain power to recognize a necessity defense even when Congress has not explicitly provided for one). The Supreme Court, however, has explicitly foreclosed this option.
97. United States v. Oakland Cannabis Buyers' Coop. 532 U.S. 483, 491,2001. (concluding that terms of the statute "leave no doubt that the [medical necessity] defense is unavailable " under the CSA, given Congress's determination that " marijuana has no medical benefits worthy of an exception"). In any event, not every person authorized to use marijuana under state law would necessarily be able to satisfy the common law requirements of the necessity defense. Under the common law defense of necessity, defendant must prove that: (1) he chose the lesser of two evils, (2) he acted to prevent imminent harm, (3) he reasonably believed his conduct would avoid the other harm, and (4) there were no alternatives to violating the law.
98. Raich v. Gonzales, 500 F.3d 850, 859 (9th Cir. 2007).
99. The federal courts have likewise rfused to recognize any constitutional due process right of access to marijuana for medical treatment.
100. Id. at 866.
101. (concluding that the Constitution "does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering").
102. Medical Marijuana Referenda in America: Hearing Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 105th Cong. (1997) (statement of Gen. Barry McCaffrey, Dir., Office of Nat'l Drug Control Policy), available at 1997 WL 606302 (elaborating on the rationales behind the federal government's categorical ban).
103. See sources cited supra note 12.
104. 21 U.S.C. § 844(a). To be sure, a congressional amendment to the CSA gives federal prosecutors the option of treating some cases of simple possession as civil rather than criminal offenses.
105. Id. § 844a. The civil provision, however, offers only limited reprieve. To begin, the provision is discretionary; defendants remain at the mercy of federal prosecutors, who retain almost unfettered discretion in deciding whether to treat simple possession as a civil or criminal matter.
106. Admin. L. Rev. 415 (1989) It is also narrow. It applies to the simple possession of no more than one ounce of marijuana, which is far less than what most states permit qualified patients to have. 28 C.F.R. § 76.2(h)(6)(vi). Use of the civil provision is also unavailable when the defendant has a prior drug conviction. 21 U.S.C. § 844a(c). In any event, it carries an assessment which, though civil in nature, can be quite steep - up to $10, 000. Id. § 844a. And because the assessment is considered a civil sanction, the rights inhering in criminal prosecutions do not apply. This means, for example, that the federal government need only establish a violation of the CSA by a preponderance of the evidence, and that the respondent is not entitled to appointed counsel if he or she cannot afford one.
107. 28 C.F.R. §§ 76-4-42 (detailing procedures for imposition of civil penalty). On balance, then, the civil provision gives marijuana users little comfort.
108. U.S.C. § 844(a).
109. See Richard Glen Boire, Life Sentences: The Collateral Sanctions Associated with Marijuana Offenses (2007) (surveying collateral sanctions imposed by states for marijuana convictions)
110. Robert A. Mikos, Enforcing State Law in Congress's Shadow, 90 Cornell L. Rev. 1411 (2005)(discussing various collateral federal sanctions that attach to drug convictions, including deportation, denial of student financial aid, and loss of welfare and housing benefits).
111. U.S.C. § 841(b)(1)(D). Distribution of a small amount of marijuana for no remuneration is considered simple possession under the law (a misdemeanor), but only when it involves social sharing among friends (a very limited circumstance).
112. Id. § 841(b)(4).
113. UNITED STATES V. EDDY, 2008 523 F.3d 1268, 1271 (10th Cir. The CSA does not define what constitutes a "small amount" for purposes of section 841(b)(4), but given that provision's explicit reference to section 841(b)(1)(D) it clearly involves amounts less than fifty kilograms of marijuana (or fewer than fifty plants). The question is "how much less?" Some courts have ruled that a few grams of marijuana may be too much. E.g., United States v. Damerville, 27 F.3d 254, 259 (7th Cir. 1994) (finding that 17.2 grams is not a "small amount" in federal prison). Additionally, due to an omission in the statutory language, the manufacture of or possession with intent to distribute any amount of marijuana (even for or among friends) does not qualify as simple possession.
114. United States v. Laakonen, 59 Fed. App'x 90, 94 (6th Cir. 2003) (possession with intent to distribute unknown quantity of marijuana does not constitute simple possession under § 841(b)(§ 841(b)(1)(D) sets the maximum sentence).
115. United States v. Campbell, 317 F.3d 597, 603 (6th Cir. 2003) (possession with intent to distribute small quantity of marijuana among friends for no remuneration does not constitute simple possession).
116. U.S.C. § 841(b)(1)(D).
117. Id. § 841(b)(1)(C).
118. Id. § 841(b)(1)(B).
119. Id. § 841(b)(1)(A).
120. 545 U.S. 1 (2005).
121. U.S. 549 (1995).
122. U.S. 598 (2000).
123. Raich, 545 U.S. at 18 ("Congress can regulate purely intrastate activity that is not itself 'commercial'. if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.").
124. Id. at 28.
125. Id. at 19 (noting that "high demand in the interstate market will draw [home grown] marijuana into that market, " thereby "frustrat[ing] the federal interest in eliminating commercial transactions in the interstate market in their entirety").
126. Id. at 43 (O'Connor, J., dissenting) (emphasis added). For similar appraisals, see, for example, grinspoon & bakalar, supra note 14, at 358 (concluding that "federal laws and policies have strangled the medical potential of marijuana").
127. Klein, supra note 5, at 1563 (suggesting medical marijuana states "will never succeed" as long as they remain outliers).
128. Ilya Somin, Gonzales v. Raich: Federalism as a Casualty of the War on Drugs, 15 cornell J.L. & Pub. Pol"Y 507, 539 (2006) (suggesting Raich has prevented states from responding to local preferences and competing for mobile citizenry on the issue of medical marijuana); LeVay, supra note 52, at 714 ("[U]nless medical marijuana defendants are entitled to assert a legal defense to prosecution under federal law, the will of the people in those states legalizing medical marijuana will be frustrated.").
129. Marcia Tiersky, Comment, Medical Marijuana: Putting the Power Where it Belongs, 93 Nw. U. L. REV. 547, 551 (1999) (claiming state laws are "merely symbolic" since marijuana is "still a Schedule I drug on the federal level", and that Congress, the DEA, or the federal courts must act if states are to have any control over the issue);
130. NATIONAL PUBLIC RADIO STATES CAN'T ALLOW MEDICAL MARIJUANA USE (June 8 2005) (suggesting Raich "effectively brought an end to local and state efforts to reduce or relax controls over domestically grown marijuana") (quoting Tom Heffelfinger, U.S. Attorney for District of Minnesota).
131. For the view from the academy that Congress has preempted state exemptions (or that it could do so), see, for example, Ann Althouse, Vanguard States, Laggard States: Federalism, and Constitutional Rights, 152 U. pa. L. REV. 1745, 1759 n.61 (2005) ('The [Raich] Court found that the Controlled Substances Act. preempted California's Compassionate Use Act of 1996.").
132. Robert A. Burt, Family Conflict and Family Privacy: The Constitutional Violation in Terri Schiavo's Death, 22 const. COMM. 427, 454 n.67 (2005) (declaring that "Congress may use its commerce power to preempt state laws permitting medical use of marijuana").
133. State Ballot Initiatives in the Federal Preemption Equation: A Medical Marijuana Case Study,40, WAKE FOREST L. REV.221,286-93(2001) (arguing that state laws allowing medical marijuana could be preempted by Congress, but suggesting that Congress had not yet expressed an intent to do so).
134. Michael Greenberger, Did the Founding Fathers Do "a Heckuva Job"? Constitutional Authorization for the Use of Federal Troops to Prevent the Loss of a Major American City, 87 B.U. L. Rev. 397, 419-420 (2007) (suggesting Congress could preempt state laws allowing "intrastate commerce in the growth, distribution, and sale of marijuana for medicinal purposes")
135. Bradford C. Mank, After Gonzales v. Raich: 7s the Endangered Species Act Unconstitutional?, 78 U. COLO. L. Rev. 375, 459 (2007) (depicting Raich as holding that it was rational for "Congress to preempt state regulation of medical marijuana")
136. Brian W. Walsh Doing Violence to the Law: The Over- federalization of Crime, 20 FED. SENT. REP. 295, n.16 (2008) (reporting that Raich Court held that the "federal Controlled Substances Act (CSA) preempted California's so-called medical marijuana law").
137. Conservative federal lawmakers evidently share this belief, "Medical" marijuana, federal drug law and the constitution's supremacy clause: hearing before the subcomm. on criminal justice, drug policy, and human resources on the house comm. on gov't reform, 2 107th Cong. (Mar. 27, ("[E]ven strong advocates of States rights have to agree that States simply cannot pass their own laws contrary to Federal law whenever they disagree with the Federal law.") (statement of Rep. Mark Souder, Comm. Chair) available at http://ftp.resource.org/gpo.gov/hearings/107h/72258.pdf.
138. id.at 50-51. (arguing that Congress intended to preempt state medical marijuana laws when it enacted the CSA) (statement of Rep. Bob Barr, Comm. Member)
139. id. at 53 ("It is my view and many on our committee that Federal law preempts local law on [the medical marijuana issue] by virtue of the supremacy clause of the Constitution.") (statement of Rep. Benjamin Gilman, Comm. Member).
140. E.g., H.R. REP. No. 105-451(1) (1998) ("[State] initiatives, in seeking to make marijuana available as a medicine, violate the Controlled Substances Act. ") (emphasis added); "Medical" Marijuana, Federal Drug Law and the Constitution's Supremacy Clause, supra note 73, at 75-76 ("[T]he supremacy clause of the Constitution makes it clear that to whatever extent Congress has exercised its legitimate powers, any inconsistent state powers are prohibited. It is hornbook law that a State law would be held void if it would retard, impede, burden or otherwise stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.") (statement of Rep. Dan Lungren, Comm. Member); Letter from Reps. Mark Souder, Bob Barr, & Doug Ose, to Att'y Gen. John Ashcroft (May 23, 2001) (claiming that "state 'medical marijuana' initiatives which purport to allow the manufacture, distribution or individual possession of marijuana [are] contrary to the Controlled Substances Act [and] are clearly unconstitutional under the Supremacy Clause") (on file with author).
141. Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 261 (2000) (emphasis added)
142. L. H. Tribe, American Constitutional Law 1180-81 & n.10(3d ed.2000 (stating that Congress may preempt state laws that "purport to require or permit conduct which would be a violation of [a] federal statute") (emphasis added)
143. One might question whether Congress actually intended to preempt state medical marijuana laws. See, e.g., DuVivier, supra note 73, at 286-93.
144. Congress included an express preemption provision in the CSA barring any "positive conflict" with the statute. 21 U.S.C. § 903.
145. See also infra, Part III.B (discussing Congress's preemptive intent). However, focusing on congressional intent suggests that Congress has the power to preempt state laws, if it so chooses (and indeed, federal lawmakers have proposed language that would unmistakably preempt state laws). Hence, I think it is more useful to focus first on Congress's constitutional power to preempt, for, as I argue below, that power is rather limited in the paradigm discussed in this Article.
146. See Laura Smitherman, Maryland Prepares to Repeal a Bad Law from the Civil Rights Era, balt. Sun, Nov. 30, 2008, at IB (detailing legislative efforts to formally repeal a clearly unconstitutional Jim Crow-era law making it illegal in Maryland to receive any kind of payment for participating in a protest against racial discrimination)
147. New mexico voters repeal jim crow era land law Orlando sent. Nov. 9 2006, at A16 (reporting that New Mexico residents voted to formally remove an unenforceable provision in the state constitution barring Asian immigrants from owning property; also noting that Florida's constitution still contains such a provision).
148. Veto Letter from Governor Pete Wilson to California State Senate (Sept. 30, 1994) (on file with author) (returning Senate Bill 1364 without his signature).
149. Ark. Op. Att'y Gen. No.2004-085 (2004) (refusing to certify proposed amendment to the Arkansas constitution that would have legalized marijuana for medical use, on the grounds that the it "fails to acknowledge that federal law that Congress has declared preemptive of state law likewise bars the medical use of marijuana. [and that] the amendment, if enacted, might be subject to challenge under the supremacy clause of the U.S. Constitution").
150. Robert Gunnison, Davis Moves Away from OK of Card for Marijuana Use, S.F. CHRON., July 14, 1999, at All (reporting that Governor Gray Davis vetoed a voluntary medical marijuana registry because it was "clearly in conflict with federal law") (quoting Michael Bustamante, Governor's Press Secretary).
151. Letter From Steve Suttle and Zachary Shandler, Asst. Att'y Gens, for N.M., to Dr. Alfredo Vigil, Cabinet Sec'y Designate, N.M. Dep't of Health (Aug. 6, 2007), available at 2007 WL 2333160 (concluding that state employees "may be subject to federal prosecution under the Controlled Substances Act. for implementation or management of the medical use marijuana registry and identification card program"). New Mexico eventually established a registry, but not until almost eighteen months after this legal advice was given.
152. Ed Fletcher, Issuing Medical Pot IDs on Agenda, SAC. BEE, Mar. 16, 2008, at Bl (reporting that Sacramento County supervisors voted down a county ID program, citing concerns that the program violates federal law); Bob Egelko, California's Pot Law Upheld in Appeals Court, S.F. CHRON., Aug. 1, 2008, at B2 (reporting that San Diego County was refusing to issue ID cards because California's law is preempted by federal law).
153. E.g., City of Garden Grove v. Superior Court of Orange County, 157 Cal. App. 4th 355, 380-386 (2008) (discussing city's assertion that CSA preempts state law that requires police to return marijuana to qualified patients).
154. H.R. 4802, 106th Cong. (2d Sess. 2000).
155. MARIJUANA POLICY PROJECT supra note 6 at 9 (baldly asserting that "Raich does not affect states' ability to pass medical marijuana laws - and it does not overturn the laws now protecting the right of more than 71 million Americans living in [states with compassionate use laws]").
156. id. at 8 ("Even though patients can be penalized by federal authorities for violating federal marijuana laws, a state government is not required to have identical laws. Therefore, a state may still allow its residents to possess, grow, or distribute marijuana for medical purposes.").
157. See, e.g., Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 iowa L. REV. 1449, 1490 (2006) (observing that Raich "neither declared [the CUA] invalid on preemption or any other grounds nor gave any indication that California officials must assist in the enforcement of the CSA").
158. See sources cited supra note 73.
159. See sources cited supra notes 73 and 85. Those who conclude state laws are preempted reason that states may not pass laws that conflict with federal legislation, while those who suggest state laws remain in force argue that states aren't required to follow Congress's approach. Both lines of reasoning contain a kernel of truth, but neither is particularly helpful in answering the question whether, why, and to what extent, states retain authority to legalize and regulate marijuana for medical purposes.
160. Here are just a few examples. First, the California Supreme Court has recently declared, without explanation, that there is no conflict between a California statute requiring police to return marijuana seized from qualified patients and the CSA, even though the CSA plainly bars distribution of marijuana and defines distribution quite expansively. City of Garden Grove v. Superior Court of Orange County, No. S159520, 2008 WL 794311, at *2 (Cal. Jan. 28, 2008).
161. City of Garden Grove v. Superior Court of Orange County, 157, Cal. App. 4th 355 384 Second, a California appellate court found the same state law was not preempted because the return of a small quantity of marijuana doesn't constitute a "real or meaningful threat to the federal drug enforcement effort, " even though conflict preemption analysis normally does not include such a threshold impact requirement
162. Third, in an amici brief before the Raich Court, one prominent pro-legalization organization claimed "the federal government could not preempt drug regulation even if it wished, because the federal government possesses no general federal police power", even though, it would seem, the federal government could not preempt state exemptions even if it did have such a general police power.
163. Gonzales v. Raich Brief of the National Organization for the Reform Marijuana Laws et al. as Amici Curiae in support of Respondents, at 14-16, 545 U.S. 1 (2005) (No. 03-1454), available at 2004 WL 2336547 (emphasis added). Part III explains more fully why, exactly, these commentators/authorities (and others) have gotten the preemption analysis wrong.
164. There is a notable exception. Ninth Circuit Judge Alex Kozinski has provided a thoughtful (and mostly correct) analysis of preemption in his concurring opinion in Conant v. Walters, 309 F.3d 629, 645-47 (9th Cir. 2002), a case invalidating (on First Amendment grounds) the federal policy of sanctioning doctors who recommend marijuana to their patients. In dicta, Judge Kozinski rightly notes that preempting state exemptions for qualified patients would amount to commandeering, because it would, in effect, compel the states to criminalize conduct. But Judge Kozinski doesn't provide a framework for distinguishing between permissible preemption and impermissible commandeering, and thus, for determining the precise metes and bounds of state power to legalize conduct Congress forbids. And he wrongly suggests that the anti- commandeering rule would block Congress from punishing doctors for participating in state programs, on the theory that that would make it difficult for states to apply their exemptions. Id. at 646. In any event, it seems that Kozinski's bottom-line conclusion (though largely correct) has not made headway - as discussed in the text above, many lawmakers and officials continue to believe state laws are preempted.
165. Klein, supra note 5, at 1564 (noting that federal government currently has few resources for handling marijuana cases)
166. marijuana policy project, supra note 6, at 8 (noting how ninety-nine of one hundred marijuana offenses are currently prosecuted at the state level).
167. Marijuana Policy Project, supra note 6, at S1.
168. Wyatt Buchanan, Pot Dispensaries Shut in Response to Federal Threat, S.F. chron., Feb. 7, 2008, at Bl (reporting that DEA had sent letter warning landlords of city's marijuana dispensaries they faced forfeiture proceedings and possible criminal sanctions for renting property to drug cooperatives; also noting that one-quarter of San Francisco's dispensaries had closed in response to the letter).
169. The DEA once threatened to rescind the prescription-writing authority of physicians who recommend marijuana. See infra Part IV.A.
170. See sources cited supra note 12.
171. Criminal law expert Susan Klein insists, for example, that [W]hen a state chooses to pursue an independent moral norm and makes that choice clear to its citizens some citizens will engage in this behavior. If this same behavior is criminalized federally, however, the behavior will be chilled. Even though federal resources for criminal prosecutions are small, the mere threat of a federal prosecution will stop all but the most hardy from engaging in this behavior, notwithstanding its legality on the state level. Klein, supra note 5, at 1564 (citing social norms literature).
172. Id. at 1563.
173. Elsewhere, I expose an overlooked constraint on the states: though they wield enough power to legalize marijuana, they may not have the ability to supervise it effectively in the shadow of a categorical federal ban. Robert A. Mikos, Commandeering States' Secrets (2009 draft) [hereinafter Mikos, Commandeering States' Secrets] (on file with author).
174. Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 797 (1996) (describing the conventional wisdom as follows: "If Congress can legislate at all in a given area, then it can always preempt state power in that area.").
175. Nelson, supra note 75, at 264 ('The simple fact is that if a federal statute establishes a rule, and if the Constitution gives Congress the power to establish that rule, then the rule preempts whatever state law it contradicts.")
176. Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 iowa L. Rev. 243, 286-87 (2005) ("Although the state political process enjoys constitutional protection, the particular outputs of that process do not. From the polyphonic perspective, no state legislation is immunized from the potentially preemptive effects of federal enactments.") (emphasis added).
177. Nelson, supra note 75, at 278 n.171 ("Even if Congress wants to displace all state law that stands as an obstacle to the accomplishment of certain purposes and objectives, the Constitution may not always give Congress the power to do so. Given modern understandings of Congress's enumerated powers, however, this is not much of a limitation.").
178. Printz v. United States 521 U.S. 898 935 (1995)
179. New York v. United States, 505 U.S. 144, 188 (1992)
180. E.g., Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 SUP. CT. REV. 71, 89 ("[t]he commandeering/preemption distinction is most plausibly and sympathetically fleshed out in terms of (some version of) the action/inaction distinction.");
181. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, ILL HARV. L. REV. 2180, 2111 n.140 (1998) (same);
182. Evan H. Caminker State sovereignty and subordinacy: May congress commandeer state officers to implement federal law? 95 Colum. L. Rev. 1001,1009-10.(smae).
183. Evan h. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. Rev. 1001, 1009-10 (1995) (same). For other useful commentary on the anti- commandeering rule, see, for example, MARK TUSHNET, THE New CONSTITUTIONAL ORDER 83-90 (2003), and Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty"Doesn't, 96 MICH. L. REV. 813 (1998).
184. Adler & Kreimer, supra note 101, at 92-93.
185. Id.
186. Id. at 101 n.91 (noting that repeal of a law involves positive action).
187. Oddly, though the pair's action/inaction distinction would seemingly permit Congress to force states to maintain the status quo (because repeal of an extant statute involves positive action), they explicitly reject as arbitrary the idea that Congress's preemption power obliges the state to maintain the status quo.
188. Id. at 91-92. In some places, Adler and Kreimer's seminal article does suggest a more limited and nuanced conception of positive action.
189. Id. at 90 (suggesting particular concern for federal laws that oblige states to impose duties on their citizens). But even assuming such qualifications were intended, they don't get much (if any) attention in the piece, and so have been overlooked or forgotten by courts and scholars.
190. The concept originates, of course, in THOMAS HOBBES, LEVIATHAN. Unlike Hobbes, however, I posit a state of nature in which government (both state and federal) exists but doesn't act, at least on the issue at hand (here, marijuana).
191. Consider, for example, the Court's response to personal liberty laws passed by northern states prior to the Civil War. These laws, inter alia, forbade state agents from taking any part in the recapture of fugitive slaves (e.g., by jailing them). In Prigg v. Pennsylvania, 41 U.S. 539 (1842), the Court seemingly approved of such laws on the theory that the states could not be obliged to assist federal (or private) authorities in rounding up or handling fugitive slaves. Id. at 615-16 (Story, J.) ("(The Fugitive Slave Clause] does not point out any state functionaries, or any state action, to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted [sic] to them by the constitution."). The states, however, could not obstruct federal (or private) efforts to round up fugitive slaves. Id. at 618-19. Hence, in Ableman v. Booth, 62 U.S. 506 (1858), the Supreme Court invalidated a writ issued by a Wisconsin court that ordered a federal court to release a prisoner being held under the Fugitive Slave Act, finding that state courts had no such authority over federal officials. For helpful background on the battle over fugitive slaves and personal liberty laws, see mark E. Brandon, Free in the World: American Slavery and Constitutional Failure (1998), and Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North: 1780-1861 (1974).
192. The Reconstruction Amendments may create a fairly narrow exception to this rule, because the anti-commandeering doctrine arguably does not apply to congressional legislation passed pursuant to them. See Adler & Kreimer, supra note 101, at 119-133 (discussing the anti- commandeering rule and the Reconstruction Amendments).
193. For a normative critique of the Court's commandeering/preemption distinction, see generally Adler & Kreimer, id.
194. Reno v. Condon, 528 U.S. 141, 151 (2000)
195. Printz v. United States, 521 U.S. 898, 932 n.17 (1997)
196. New York v. United States, 505 U.S. 144, 177-79 (1992).
197. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 555-57 (1985) (holding that states are not exempt from federal laws). Though the text mentions largely uncontroversial cases, determining what constitutes a generally applicable requirement can pose a serious challenge. See Adler & Kreimer, supra note 101, at 110-112 (discussing troubles courts face in defining the concept).
198. The Court has generally favored interpreting federal statutes in a way that avoids difficult questions about the outer limits of Congress's substantive powers. E.g., Solid Waste Agency of N. Cook County, v. U.S. Army Corps of Eng"rs, 531 U.S. 159, 174 (2001). The emphasis on statutory construction and constitutional avoidance may help explain why so little attention has been paid to the constitutional limits of Congress's preemption power.
199. U.S.C. § 903 (emphasis added).
200. See infra Part III.C.4 for a more complete discussion of this example.
201. E.g., United States v. Santana, 898 F.2d 821, 824 (1st Cir. 1990) ("Defendant may not be convicted of aiding and abetting the possession of cocaine merely on proof that he was a knowing spectator [to a drug transaction].").
202. U.S.C. § 846 (proscribing conspiracies and attempts to violate the CSA).
203. For a discussion of the elements of a conspiracy offense under the CSA, see Kevin Jon Heller, Note, Whatever Happened to Proof Beyond a Reasonable Doubt? Of Drug Conspiracies, Overt Acts, and United States v. Shabani, 49 STAN. L. REV. 11l (1996).
204. 18 U.S.C. § 2(a) ("Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.").
205. See, e.g. United States v. Zafiro, 945 F.2d 881, 887 (7th Cir. 1991) (Posner, J.) ('The crime of aiding and abetting requires knowledge of the illegal activity that is being aided and abetted, a desire to help the activity succeed, and some act of helping.").
206. See United States v. Poston, 902 F.2d 90, 93-95 (D.C. Cir. 1990) (Thomas, J.).
207. See Conant v. Walters, 309 F.3d 629, 639-40, 645-647 (9th Cir. 2002) (Kozinski, J., concurring) (suggesting, in dicta, that preemption of state marijuana exemptions would constitute prohibited commandeering).
208. See Klein, supra note 5, at 1553-1554 (noting that "the Supreme Court has not stricken a state criminal statute on preemption grounds for nearly half a century").
209. See infra Part TV.
210. Cf. Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 notre Dame L. rev. lull, 1029 n.84 (2000) (suggesting that preemption could be considered "suppression of speech" by state government).
211. See generally Eugene Volokh, Crime-Facilitating Speech, 57 stan. L. rev. 1095 (2005).
212. In theory, of course, Congress could preempt the entire field of marijuana regulations, thereby mooting registration programs; after all, the states would no longer need to distinguish between medical/non-medical users because they could punish neither group. See, e.g., Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941).
213. See supra note 38.
214. Cf. United States v. Zafiro, 945 F.2d 881, 887-88 (7th Cir. 1991) (Posner, J.) (upholding aiding and abetting conviction of defendant who allowed drug conspirators to use her apartment for drug sales, knowing they were dealing drugs, and intending to assist their enterprise); see also Buchanan, supra note 92 (reporting that DEA has threatened landlords who rent property to marijuana dispensaries).
215. Section 841(a) of the CSA applies to "any person", which, courts have presumed, covers government employees as well as private citizens.
216. U.S.C. § 885(d).
217. Appellants' Reply Brief at *2-6, United States v. Oakland Cannabis Buyers' Coop., 259 Fed. App'x 936 (9th Cir. 2007) (No.05-16466) (brief signed by Randy Barnett, among others).
218. State v. Kama, 39 P.3d 866, 868 (Or. App. 2002) (finding city police immune under Section 885(d) for returning marijuana to qualified patient, pursuant to state law).
219. City of Garden Grove v. Superior Court of Orange County, 2008 WL 794311, at *l-2 (Cal. Jan. 28, 2008) (same).
220. Cf. County of Santa Cruz v. Ashcroft, 279 F. Supp. 2d 1192, 1211-12 (N.D. Cal. 2003) (rejecting claim that city ordinance could immunize city-authorized marijuana cooperative under 21 U.S.C. § 885(d).
221. city ordinance preempted, because it conflicts with CSA), rev'd on other grounds, 314 F. Supp. 2d 1000 (N.D. Cal. 2004).
222. United States v. Rosenthal, 266 F. Supp. 2d 1068, 1079 (N.D. Cal. 2003) (Breyer, J.), ("Section 885(d) cannot reasonably be read to cover acting pursuant to a law which itself is in conflict with the Act."), rev'd in part on other grounds, 445 F.3d 1239 (9th Cir. 2006).
223. Cf. United States v. Rosenthal, 454 F.3d 943, 948 (9th Cir. 2006) (granting immunity to a city-authorized marijuana cooperative "contradicts the purpose of the CSA").
224. Indeed, the Maine program described above was abandoned out of concern that the program was preempted by federal law; state officials also feared the state might lose $19 million in federal grants and that its employees could be held criminally liable for violating federal law. Letter from Roy E. McKinney, supra note 46.
225. E.g., United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994) (sharing drugs with another person constitutes "distribution"; no exchange of money is required).
226. It would also appear that these private entities generally lack the specific intent required to be found guilty of aiding and abetting a CSA violation. See supra notes 118-120 and accompanying text (discussing contours of aiding and abetting liability).
227. It is thus unnecessary to address the claim made by some state courts that 21 U.S.C. § 885(d) immunizes state agents from criminal liability for the return of marijuana. That provision - and the problems confronting state court interpretations of it - is discussed above in Part III.C.4.
228. In particular, the conditions must be stated unambiguously; they must bear some relationship to how the funds will be used; and the funds offered must not be so large as to practically compel acceptance. South Dakota v. Dole, 483 U.S. 203, 207-211 (1987) (upholding federal grant that required, as condition of acceptance, that South Dakota increase its minimum legal drinking age).
229. New York v. United States, 505 U.S. 144, 171-173 (1992) (distinguishing conditional spending from commandeering).
230. Of course, Congress would be betting that no state would decline such an offer, and the fact that most states have continued to fight their war on recreational marijuana suggests that this is the case.
231. F.E.R.C. v. Mississippi, 456 U.S. 742, 765-766 (1982).
232. E.g., Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1988-89 (1995)
233. Lynn A. Baker & Mitchell N. Berman, Getting off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to do so, 78 IND. L. J. 459, 499-504 (2003) (discussing how Congress could use conditional spending to circumvent federalism limits)
234. Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 SUP. CT. REV. 85
235. Albert J. Rosenthal, Conditional Federal Spending and the Constitution, 39 STAN. L. REV. 1103 (1987).
236. In an October 2002 national opinion poll, for example, 80 percent of respondents supported legalizing marijuana for medical uses. Time, Cable News Network, and Harris Interactive, Oct. 23-Oct. 24, 2002, iPOLL Databank, The Roper Center for Public Opinion Research, University of Connecticut, available at http://www.ropercenter.uconn.edu/ipoll.html.
237. See generally, Robert A. Mikos, The Populist Safeguards of Federalism, 68 OHIO ST. L. J. 1669 (2007) [hereinafter Mikos, Populist Safeguards] (demonstrating that public opinion significantly constrains the exercise of congressional power).
238. See H.R. 2086, 149 CONG. REC. H8962-02 (2002) (proposing that 5 percent of federal law enforcement grants be diverted from local drug authorities to federal drug authorities in states that adopt medical marijuana exemptions).
239. Gonzales v. Raich, 545 U.S. 1, 29-33 (2005) (state medical marijuana defense does not bar prosecution under federal CSA).
240. See generally Gary Becker, Crime and Punishment: An Economic Approach, 76 J. pol. econ. 169 (1968) (explaining economic theory of optimal magnitude and probability of sanctions).
241. Bureau of Just. Stat., U.S. Dep't of Just., Drugs and Crime Facts (Aug. 17, 2009), http://www.ojp.usdoj.gov/bjs/dcf/enforce.htm.
242. Federal Just. Stat. Resource Center, Persons Arrested and Booked by Offense, 2007, http://fjsrc.urban.org/var.cfm?ttype=one-variable&agency= USMS&db-type=ArrestsFed& saf=IN Oast visited Aug. 20, 2009).
243. Bureau of Just. Stat., supra note 149.
244. Substance Abuse & Mental Health Services Admin., 2007 National Survey on drug USE and health, fig. 2.1, http://www.oas.samhsa.gov/NSDUH/2k7NSDUH/2k7 results.cfm#Ch2 (reporting past-month usage of marijuana).
245. I have estimated the number of people using marijuana (legally) by extrapolating from the number of known users in a representative registration state, Oregon. Oregon, for example, currently has 20, 307 registered users, representing approximately 0.56 percent of its population. Oregon Medical Marijuana Program, Statistics (2009), http://www.oregon.gov/DHS/ph/ ommp/data.shtml. Because there are roughly 71 million people living in the thirteen medical marijuana states, there would be approximately 400, 000 people currently using marijuana legally across the country. This figure is necessarily approximate, for several reasons. On the one hand, it could overestimate the number of total users; e.g., it's possible Oregon may have more qualified patients (per capita) than other states, if, say, some qualified patients migrated to Oregon to take advantage of its relatively generous health policies. On the other hand, my figure could underestimate total users; e.g., California may have more users (per capita) than my estimate suggests since it recognizes more qualifying conditions than does Oregon (or any other state). In spite of these concerns, however, the 400, 000 number appears a reasonable approximation.
246. The states arrest more than 800, 000 persons for possession of marijuana every year; that amounts to roughly 5 percent of all marijuana users. See supra note 10 and accompanying text.
247. See supra note 10 and accompanying text.
248. Only a few hundred simple possession (marijuana) cases are prosecuted by the federal government each year. See office of nat'l Drug control policy, who's really in prison for marijuana 9 (2005) (finding federal courts sentenced only 186 defendants for simple possession of marijuana in 2001).
249. Administrative Response to Arizona Proposition 200 and California Proposition 215, 62 Fed. Reg. 6164 (Feb. 11, 1997).
250. Id. at 6164 (concluding that a practitioner's action of "recommending or prescribing Schedule I controlled substances is not consistent with the 'public interest' and will lead to administrative action by the [DEA] to revoke the practitioner's registration") (citing 21 U.S.C. § 823(f).
251. Conant v. Walters, 309 F.3d 629, 639-40 (9th Cir. 2002) (Kozinski, J., concurring) ("By speaking candidly to their patients about the potential benefits of medical marijuana, [physicians] risk losing their license to write prescriptions, which would prevent them from functioning as doctors. In other words, they may destroy their careers and lose their livelihoods.").
252. Id. at 636.
253. Id. at 637 ("The government's policy in this case seeks to punish physicians on the basis of the content of doctor-patient communications. Only doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy. Moreover, the policy. condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient. Such condemnation of particular views is especially troubling in the First Amendment context.").
254. Id. at 638 (citing Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002)) (assuming that any crime-facilitating speech would not be protected).
255. See supra notes 61-65 and accompanying text.
256. See Jon Gettman, Marijuana Production in the United States 3 (2006), available at http://www.drugscience.org/Archive/bcr2/MJCropReport-2006.pdf (estimating that domestic marijuana production surged ten-fold between 1981 and 2006, in spite of ongoing federal and state eradication campaigns; also concluding that marijuana is the largest cash crop in the United States).
257. A search on Amazon.com, for example, turned up a litany of titles like MARIJUANA HORTICULTURE: THE INDOOR/OUTDOOR MEDICAL GROWER'S BIBLE and GROW GREAT MARIJUANA: AN UNCOMPLICATED GUIDE TO GROWING THE WORLD'S FINEST CANNABIS. Sheesh!
258. See U.S. Dep't of Just., National Drug Threat Assessment 2009, at 18-19 (2008), available at http://www.usdoj.gov/ndic/pubs31/31379/31379p.pdf (suggesting high-profit margins for the drug have triggered large increases in indoor-marijuana production in the United States).
259. In a similar vein, federal drug authorities have warned that campaigns to eradicate marijuana grown outdoors may have simply pushed marijuana production indoors where it is harder to detect. Id.
260. As I discuss in Mikos, Commandeering States' Secrets, supra note 97, such supervision is needed to prevent diversion of marijuana to recreational uses and to protect the health of legitimate medical users.
261. Title VII creates a private cause of action against employers who discriminate, thereby lessening the need for federal agencies to enforce the law. Creating a private cause of action (criminal or civil) against persons who grow (or use) marijuana, however, may not work nearly as effectively (assuming Congress could pass such a measure in the first place). To begin, citizens may not have a strong enough incentive to sue drug users/suppliers (it's considered a victimless crime), though offering them a share of any forfeited property could serve as an inducement. In any event, even assuming they are motivated to act, private citizens don't necessarily have the information necessary to take action (unlike direct victims of employment discrimination) - many people who use/grow marijuana do so in private.
262. See Printz v. United States, 521 U.S. 898, 935 (1997).
263. See Kenneth G. Dau-Schmidt, An Economic Analysis of the Criminal Law as a Preference-Shaping Policy, 1990 DUKE L.J. 1, 1-3;
264. see also Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 944-50 (1995) (suggesting governments do/may influence public opinion).
265. GOV'T ACCOUNTABILITY OFFICE, ONDCP MEDIA CAMPAIGN: CONTRACTOR'S NATIONAL EVALUATION DID NOT FIND THAT THE YOUTH ANTI-DRUG MEDIA CAMPAIGN WAS EFFECTIVE IN REDUCING YOUTH DRUG USE 10 (2006), available at http://www.gao.gov/new.items/ d06818.pdf.
266. Cf. TOM TYLER, WHY PEOPLE OBEY THE LAW 64 (1990) ('The most important normative influence on compliance with the law is the person's assessment that following the law accords with his or her sense of right and wrong.").
267. ONDCP MEDIA CAMPAIGN, supra note 172 (finding "exposure to the [anti-marijuana] advertisements [from 2002-2004] generally did not lead youth to disapprove of using drugs and may have promoted perceptions among exposed youth that others' drug use was normal" and "exposure to the campaign did not prevent initiation of marijuana use and had no effect on curtailing current users' marijuana use"). Results of other studies have been mixed. Some studies suggest government campaigns backfire.
268. E.g., Maria Czyzewsk & Harvey J. Ginsburg, Explicit and Implicit Effects of Anti-marijuana and Anti-tobacco TV Advertisements, 32 ADDICTIVE BEH. 114, 122 (2006) (finding that "a sample of anti-marijuana public statement announcements used in national anti-drug campaign in the U.S. produced immediate effects opposite to intended by creators of this campaign on the youth's attitudes to marijuana"). Other studies suggest the campaigns do, in fact, reduce marijuana use, at least when combined with other anti-drug programs.
269. E.g., Douglas Longshore et al., National Youth Anti-Drug Media Campaign and School-Based Drug Prevention: Evidence for a Synergistic Effect in ALERT Plus, 31 ADDICTrVE BEH. 496, 498 (2006) (finding that exposure to national anti-marijuana campaign and school-based drug curriculum significantly reduced past-month use of marijuana).
270. See Dau-Schmidt, supra note 171, at 17-18 ('The first requirement is that the person or group of people who are endeavoring to affect another's preferences have some legitimate claim to authority over the person, or at least have the confidence of the person. An untrusting and defiant person is probably a poor candidate for preference modification.");
271. Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 952 (1996) ("Purely governmental efforts at norm management may fail for lack of trust.");
272. id. at 919 ("[A] serious problem with legal efforts to inculcate social norms is that the source of the effort may be disqualifying. Such efforts may be futile or even counterproductive. If Nancy Reagan tells teenagers to 'just say no' to drugs, many teenagers may think that it is very good to say 'yes.'").
273. See, e.g., John Kincaid & Richard L. Cole, Public Opinion on Issues of Federalism in 2007: A Bush Plus?, 38 PUBLIUS: J. OF FEDERALISM 469, 477 (2008) (reporting survey data showing that more than 44 percent of citizens had "Not very much" or "None at all" trust in the federal government).
274. Cf. GRINSPOON & BAKALAR, supra note 14, at 156 (claiming marijuana will never be rescheduled by the federal government because no company would profit from it).
275. Mikos, Populist Safeguards, supra note 145, at 1699-1704.
276. DEA Regulation of Medicine: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Jud. Comm., 105th Cong. (2007) (testimony of Dr. David Murray, Chief Scientist, Office of National Drug Control Policy), available at 2007 WL 2009613 (describing and critiquing the message being sent by proponents of medical marijuana laws).
277. Medical Marijuana Referenda in America, supra note 56;
278. see also "Medical" Marijuana, Federal Drug Law and the Constitution's Supremacy Clause, supra note 73, at 1-2 ("[State initiatives that legalized marijuana for medical purposes] sent even more confusing and contradictory messages to our already confused children at a time when their attitudes about marijuana use may be open to bad influences and they may lead to even harder drugs.") (statement of Rep. Mark Souder);
279. id. at 44 ("[State laws] soften[] the idea of the use of drugs young people hear that and what they hear is that if it's a medicine it's not so bad. And then they begin to use more.") (statement of Mel Semblar, former Chairman of the Drug Free America Foundation);
280. Brief of U.S. Reps. Mark E. Souder, et al., for Petitioners, at 28, Gonzales v. Raich, 545 U.S. 1 (2005) ("Repeated claims of marijuana's 'medicinal' value, coupled with the apparent ratification of those claims by state medical marijuana laws, have lowered the public perception of marijuana's scientifically demonstrated harmfulness - particularly among young people. These public perceptions can have a significant impact on marijuana usage rates.").
281. TYLER, supra note 173, at 24 ("The key feature of normative factors that differentiates them from considerations of reward and punishment is that the citizen voluntarily complies with rules rather than respond to the external situation. Because of this, normative influences are often referred to by psychologists as 'internalized obligations, ' that is, obligations for which the citizen has taken personal responsibility."). Compliance with loosely enforced tax laws provides a stunning example.
282. See, e.g., Leandra Lederman, The Interplay between Norms and Enforcement in Tax Compliance, 64 OHIO ST. L. J. 1453, 1459 (2003) (noting that "the expected sanction of any particular tax evader is tiny, yet voluntary compliance with the federal income tax generally is estimated to be around eighty-three percent").
283. TYLER, supra note 173, at 62.
284. Id. at 25.
285. Id. at 65 ("People clearly have a strong predisposition toward following the law. If authorities can tap into such feelings, their decisions will be more widely followed.").
286. See, e.g., Klein, supra note 5, at 1544 (suggesting people won't use marijuana for medical purposes, in part, because of the moral duty to obey law).
287. See Lederman, supra note 181, at 1461 (reviewing research showing that "people tend to contribute to public goods when they perceive that others contribute, even though they would maximize their own return by not contributing") (emphasis added).
288. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 358 (1997) [hereinafter Kahan, Social Influence];
289. see also Dan M. Kahan, Trust, Collective Action, and Law, 81 B.U. L. REV. 333, 334 (2001) ("Individuals who have faith in the willingness of others to contribute their fair share will voluntarily respond in kind.").
290. Despite the importance of the issue, there is little research directly on point. Tom Tyler acknowledges that "[i]t is unclear what the boundaries of legitimacy are. To which authorities and to which of their actions is it granted?" TYLER, supra note 173, at 66. Cass Sunstein briefly suggests that states may be best suited to change social norms because they are "closest to the people, and in that sense most responsive to it." Supra note 175, at 952.
291. See Mikos, Populist Safeguards, supra note 145, at 1711-12 (discussing citizens' federalism beliefs across various issue domains).
292. Surveys show that people consistently deem voter referenda more legitimate than laws passed by their representatives (state or federal).
293. See id. at 1708-11 (discussing literature). Anecdotal evidence further suggests that citizens are particularly disdainful of legislative efforts to repeal, amend, or otherwise tamper with measures enacted by voter referenda. Id. (discussing Oregon voters' opposition to federal and state legislative efforts to repeal state's Death with Dignity initiative).
294. Richard McAdams discusses the conditions under which norms actually trigger sanctions. He suggests there must be consensus as to whether some behavior is worthy of esteem, that any such consensus must be widely known, and that violations of the consensus (i.e., the norm) must be detectable.
295. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338, 358 (1997).
296. For purposes of this article, I assume that use of marijuana for medical purposes is detectable. This seems plausible, for 1) patients need their doctors' recommendation to use the drug; and 2) oftentimes, patients have caregivers (relatives or others) who directly witness use of the drug. It is possible, of course, that detection of the medical use of marijuana is low, such that social norms would not significantly impact marijuana use.
297. See, e.g., Robert Cooter, Do Good Laws Make Good Citizens? An Economic Analysis of Internalized Norms, 86 VA. L. REV. 1577, 1601 (2000);
298. Kahan, Social Influence, supra note 187, at 351; Sunstein, supra note 175, at 908.
299. Norms scholars often refer to this as managing the social meaning of behavior. For a sampling of the literature suggesting law can change (alter, shape, and so on) the content of norms;
300. see, e.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991);
301. TYLER, supra note 173;
302. Cooter, supra note 192;
303. Kahan, Social Influence, supra note 187;
304. Lessig, supra note 171;
305. McAdams, supra note 191;
306. Sunstein, supra note 175.
307. See supra Section B.l.
308. See, e.g., Robert E. Scott, The Limits of Behavioral Theories of Law and Social Norms, 86 VA. L. REV. 1603, 1627-29 (2000) (criticizing the view the lawmakers actually spur creation of new norms).
309. Scott aptly states the two contrasting views of the relationship between law and norms: On one view, a norm already exists and the law simply reflects the emerging norm. On the other view, the conditions for normative change are ripe, and the law stimulates the creation of the new norm. Which came first, the chicken or the egg? Without further, more rigorous analyses, the verdict on the expressive effects of law must remain unproven. The ideas are interesting, the question is important, but, thus far, the observations are largely speculative. Id.
310. See id. at 1614-16 (suggesting law provides information about norms' content);
311. see also McAdams, supra note 191, at 400-07 (arguing that law publicizes social consensus and thereby helps to create norms).
312. Scott, supra note 195, at 1616-17.
313. See Mikos, Populist Safeguards, supra note 145, at 1687-91 (comparing responsiveness of state and federal lawmaking procedures).
314. See supra note 144 and accompanying text.
315. See generally Mikos, Populist Safeguards, supra note 145 (analyzing obstacles to passage of congressional statutes).
316. See McAdams, supra note 191, at 387-88 (explaining why group norms have stronger influence compared to larger societal norms).
317. In addition to broadcasting a more current and relevant signal concerning
318. In the lingo of the norms literature, states can play the role of norm critics or norm entrepreneurs, facilitating changes to social norms; this role may be particularly important when criticizing extant norms is costly. McAdams, supra note 191, at 396 (discussing norm critics and how they often incur a cost when challenging conventional wisdom); Sunstein, supra note 175, at 929-30 (discussing role of norm entrepreneurs).
319. Indeed, jurors in the federal prosecution of Ed Rosenthal (the so-called ganja guru) claimed they would have acquitted him of marijuana charges had they known he was growing marijuana for medicinal purposes. The problem, of course, is that jurors may not know they are entitled to acquit the guilty, and courts may bar attorneys and witnesses from informing jurors of the nullification power.
320. United States v. Rosenthal, 454 F.3d 943, 946 (9th Cir. 2006) (noting that trial court correctly excluded evidence of medical marijuana defense that could be used only to secure jury nullification).
321. See Klein, supra note 5, at 1564 n.117.
322. See supra note 153 (explaining estimate). The number of lawful medical users has jumped over time, not only because more states have added exemptions but also because in-state participation rates have climbed. In Oregon, for example, the number of registered users has skyrocketed since the state's medical marijuana program was enacted in 1998; in 2002, for example, only 1, 691 people had registered for an exemption, but by 2008, more than 20, 000 people were registered to use marijuana legally.
323. See GEN. ACCOUNTING OFFICE, MARIJUANA: EARLY EXPERIENCES WITH FOUR STATES' LAWS THAT ALLOW USE FOR MEDICAL PURPOSES 28-29 (2002) (historical data);
324. OREGON MEDICAL MARIJUANA PROGRAM, supra note 153 (current data).
325. There is, in fact, a long history of this type of conflict (think of the personal liberty laws passed by northern states before the Civil War).
326. See supra note 107.
327. See, e.g., Letter from Sens. Orrin G. Hatch & Jon Kyi to Att'y Gen. Eric Holder (July 20, 2009), available at http://www.imega.org/wp-content/ uploads/2009/07hatch-kyl-letter2holder.pdf (decrying proposals to permit sports gambling in Delaware and New Jersey).
328. 28 U.S.C. § 3702 (2008).
329. The Delaware statute contemplates a state-operated sports lottery. 29 DEL. CODE ANN. § 4825 (2009) (instructing Director of State Lottery Office to "commence a sports lottery as soon as practicable"). The Third Circuit has found the Delaware statute preempted by federal law.
330. Office of the Comm'r of Baseball v. Markell, 579 F.3d 293 (3d Cir. 2009).
331. In contrast to the Delaware statute, the New Jersey proposal authorizes private casinos to operate sports pools - i.e., it does not contemplate state operation of a sports gambling scheme. N.J. Senate Bill No. 143 (2009), available at http://www.njleg.state.nj.us/2008/Bills/S0500/ 143-Il.PDF. To be sure, private casinos are licensed by the state, but that alone does not make them state actors.
332. E.g., Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 189 (3d Cir. 2000).
333. The Delaware and New Jersey Constitutions ban, inter alia, sports-related gambling. DEL. CONST, art. II, § 17; N.J. CONST, art. TV § 7.
334. Enforcing a (hypothetical) federal ban on physician-assisted suicide, for example, would not require the same resource commitment from Congress as would enforcing the marijuana ban: Only 341 residents have sought a physician's assistance to commit suicide since the inception of Oregon's physician-assisted suicide program in 1997, a far cry from the 20, 307 patients noio participating in Oregon's medical marijuana program.
335. William Yardley, On Washington's State Ballot: Doctor Assisted Suicide, N.Y. TIMES, Oct. 30, 2008, at A12 (reporting data on Oregon physician-assisted suicide program);
336. OREGON MEDICAL MARIJUANA PROGRAM, supra note 153 (reporting data on Oregon medical marijuana program).