Has the recent U.S. Supreme Court decision in Murphy v. NCAA, 584 U.S. ___ (May 14, 2018), prohibiting Congress from forcing states to outlaw sports gambling, actually changed anything regarding legalization of marijuana in the States? No, not really, and here’s why.
The decision in Murphy does not change anything since Gonzales v. Raich, 545 U.S. 1 (2015), was decided. States are, and always have been, free to prohibit, or not to prohibit, activity that the federal government does not allow.
But, we are still left with one fundamental question. Does state law specifically authorizing activity the federal government does not allow prohibit the federal government from enforcing federal law against an individual in full compliance with the state law? To be fair, it does matter how the laws (both state and federal) are written (context matters), but let’s proceed to a legal analysis.
Starting with the recent decision in Murphy:
Justice O’Connor’s opinion for the Court traced this rule to the basic structure of government established under the Constitution. The Constitution, she noted, “confers upon Congress the power to regulate individuals, not States.” 505 U.S., at 166. In this respect, the Constitution represented a sharp break from the Articles of Confederation. “Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly.” 505 U.S., at 163. Instead, Congress was limited to acting “‘only upon the States.’” 505 U.S., at 162 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)). Alexander Hamilton, among others, saw this as “‘[t]he great and radical vice in … the existing Confederation.’” 505 U. S., at 163 (quoting The Federalist No. 15, at 108). The Constitutional Convention considered plans that would have preserved this basic structure, but it rejected them in favor of a plan under which “Congress would exercise its legislative authority directly over individuals rather than over States.” 505 U.S., at 165.
Murphy, slip opinion at page 15–16, citing New York v. United States, 505 U.S. 144 (1992).
In Gonzales v. Raich, Raich claimed that federal prohibition of her personal use of marijuana for medical use authorized by California state law violated “the Commerce Clause, the Due Process Clause of the Fifth Amendment, and the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity.” 545 U.S., at 8.
Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for we have often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez, 402 U. S., at 154 (emphasis deleted) (quoting Wirtz, 392 U. S., at 193); see also Hodel, 452 U. S., at 308.
545 U.S., at 23.
The question that was not reached in these two decisions, Murphy and Raich, is a distinction the U.S. Supreme Court mentioned in a footnote in Raich. After reviewing and upholding the statutory scheme, the court noted that marijuana must be correctly classified to pass constitutional muster, citing, “the accuracy of the findings that require marijuana to be listed in Schedule 1.” 545 U.S., at 28 n. 37. The court further noted, “[t]he possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution.” 545 U.S., at 28 n. 37.
And, this is precisely the analysis legal experts have overlooked. Legal experts, without exception, consistently overlook the “accuracy of the findings that require marijuana to be listed in Schedule 1.”
I’ve written on this topic extensively, but it’s worth repeating again. Marijuana cannot be in Schedule 1 if it has “accepted medical use in treatment in the United States.” 21 U.S.C. § 812(b)(1)(B) (2018).
The requirements for Schedule 1 are listed in 21 U.S.C. § 812(b)(1):
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
© There is a lack of accepted safety for use of the drug or other substance under medical supervision.
Legal experts will tell you that the required findings are listed in 21 U.S.C. § 811©:
In making any finding under subsection (a) of this section or under subsection (b) of section 812 of this title, the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:
(1) Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.
But, the statute clearly says, “consider.” Nowhere does the statute say any or all of these factors are determinative. Nowhere does the statute say other factors, such as state laws, have no relevance. State law is not explicitly included in the list of findings, but one has to wonder what impact 46 state medical marijuana laws enacted since 1996 might have on a statute that was written in 1970. How could a federal administrative agency make a finding that a state has not accepted the medical use of a controlled substance? Are these state laws just totally irrelevant?
There actually are some federal court decisions that address this question, showing that state law is actually determinative.
First, in 1987, The U.S. Court of Appeals for the First Circuit held that solely intrastate medical use of a controlled substance is accepted medical use of a controlled substance in the United States. Grinspoon v. DEA, 881 F.2d 877 (1987):
Congress did not intend “accepted medical use in treatment in the United States” to require a finding of recognized medical use in every state or, as the Administrator contends, approval for interstate marketing of the substance.
Grinspoon, at 886. And, as recognized by the U.S. Court of Appeals for the District of Columbia Circuit, “neither the statute nor its legislative history precisely defines the term ‘currently accepted medical use’.” Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991).
The authority of the DEA is not unlimited. As the U.S. Supreme Court held in 2006:
The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.
Gonzales v. Oregon, 546 U.S. 243, 258 (2006).
Legal experts are applying federal pre-emption to state laws, when they should be applying state pre-emption to the invalid federal administrative classification of marijuana as a substance without medical use in the States.
To prove the point, the Federal Aviation Administration interpretation of state and federal drug law clearly shows state medical marijuana laws exempt individuals from the enforcement of federal administrative regulations:
Title 14: Aeronautics and Space
PART 91—GENERAL OPERATING AND FLIGHT RULES
Subpart A—General
§91.19 Carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances.
(a) Except as provided in paragraph (b) of this section, no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marihuana, and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.
(b) Paragraph (a) of this section does not apply to any carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.
14 C.F.R. § 91.19 (2018).