A recent Reason magazine piece (which pointed out among other things that 60% of likely voters support marijuana legalization) reminded me about a problem with Michigan’s Medical Marijuana Act.
A major lawsuit pits the ACLU and the CATO Institute against a state prosecutors lobby, the Michigan State Bar and various municipalities. The latter want the law (passed overwhelmingly by Michigan voters) thrown out, and while I hope they lose, the prosecutors have an interesting argument.
The United States Supreme Court has held in Michigan Canners and Freezers Ass’n v Agile Mktg & Barging Bd where a state law authorizes conduct that the federal law forbids, the state law stands as an obstacle to accomplishment and execution of the full purposes and objectives of Congress and is therefore, preempted. Michigan’s Medical Marihuana Act is preempted because it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in its adoption of the Federal Controlled Substance Act.
No one — on either side — argues that the federal laws don’t apply or can’t be enforced. OTOH, neither is it seriously disputed that the federal government cannot commandeer states to criminalize marijuana:
…Congress cannot force states to ban marijuana under their own laws. As the Court explained in New York v United States, 505 US 144, 166 (1992), “even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” See also Printz v United States, 521 US 898, 935 (1997) (“Congress cannot compel the States to enact or enforce a federal regulatory program.”).1 This anticommandeering rule reflects the sound principle that “States are not mere political subdivisions of the United States.” New York, supra, 505 US at 188.
The anticommandeering rule serves a crucial function in our federal system.
Etc.
So, it’s clear that Michigan does not have to criminalize marijuana if it does not want to. The laws are acts of the state legislature and could be erased from the books.
But what the prosecutors are saying is that state laws cannot specifically authorize anyone to smoke marijuana, and that the MMMA does precisely that:
Like the Michigan law at issue in Michigan Canners, and the statute at issue in Emerald Steel Fabricators, the MMMA authorizes conduct that is prohibited by federal law.
§ 7 of the MMMA, MCL 333.26427, provides that “Mlle medical use of marihuana is allowed under state law to the extent that it is cai•ied out in accordance with the provisions of this act.” see also People v Kolanek, 491 Mich 382, 394; 817 NW2d 528 (“The purpose of the MMMA is to allow a limited class of individuals the medical use of [marihuana] ) The MMMA broadly defines medical use to include “acquisition, possession, internal delivery, transfer, or transportation of marihuana…” MCL 333.26423(e). These are all activities strictly prohibited by
the CSA. see 21 USC §§ 841-863, 882(a) discussed supra. The MMMA also protects qualifying patients and caregivers from arrest, prosecution and penalty if they are in possession of 2.5 ounces of usable marihuana and in possession of a registration identification card. MCL 33326424. Not only is this section of the MMMA quite similar to the statute struck down by the Oregon Supreme Court in Emerald Steel Fabricators, it is also contrary to the clear prohibition expressed in the CSA. see 21 USC § 844(a) Finally, MCL 333.26428 mandates that a court dismiss a marihuana prosecution if a defendant successfully “asset-[s] the medical purpose for using marihuana.” To reiterate, Congress has determined that marihuana has no recognized medical use and strictly prohibits its possession, manufacture or distribution. The MMMA, however, allows a person to do what the federal law prohibits. The MMMA stands as an obstacle to the enforcement of federal law because it authorizes the very conduct that federal law prohibits, and in doing so, conflicts with Congress’s purpose and objective to prohibit the illegal use and distribution of controlled substances. Because the MMMA conflicts with the CSA, it is pre-empted and without effect.
The case could go either way, because the precedents they cite are not quite as compelling as they maintain.
But if the Michigan Supreme Court throws out the MMMA, that will be seen as a slap in the face by the voters who passed it, and there is nothing to stop them from passing another law simply striking all of the state’s marijuana laws from the books.
The prosecutors may win this, but if they do, I predict they will simply pave the way for legal marijuana, and thus, they will ultimately lose.
Have to say, it’s an interesting way to “fight” the marijuana legalization movement.