Bills pending in both chambers of the Iowa General Assembly, House File 2589 and Senate File 2363, are fatally flawed for failure to cite federal legal authority. The federal authority to create an exemption from federal drug law is found in 21 C.F.R. §1307.03 (“exceptions to regulations”) and is consistent with 21 U.S.C. §903 (“application of state law”). HF 2589 and SF 2363 are fatally flawed because they require the department to go on a fool’s errand asking the federal government not to withhold federal funding for violation of federal drug law.
See HF2589 (page 5) and SF2363 (page 9):
The department of public health shall request guarantees from the agencies of the federal government providing funding to educational and long-term care facilities that facilities with policies allowing patients to possess medical cannabidiol on the grounds of the facilities consistent with chapter 124E or allowing facility staff to administer medical cannabidiol to a patient shall not lose eligibility for any federal funding due to such policies.
The language in both of these bills (HF 2589 and SF 2363) is identical, fatally flawed because it fails to cite federal legal authority, and is most likely based on a recommendation from the Medical Cannabidiol Board’s 2019 Annual Report (page 7) that the state obtain an “exemption” from federal law for the state medical use of cannabidiol.
A decision last week (February 26, 2020) in New York v. United States DOJ, No. 19-267, from the United States Court of Appeals for the Second Circuit, explains that conditions for federal funding cannot simply be waived without some legal authority for the waiver.
See New York v. United States DOJ (pages 57-58):
While Congress cannot regulate the States, its constitutional powers, notably under the Spending Clause, see U.S. CONST. art. I, § 8, cl. 1, do allow it to “fix the terms on which it shall disburse federal money to the States,” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. at 17. By setting such terms, Congress can “influenc[e] a State’s policy choices,” New York v. United States, 505 U.S. at 166, and even “implement federal policy it could not impose directly under its enumerated powers,” NFIB v. Sibelius, 567 U.S. at 578; see South Dakota v. Dole, 483 U.S. 203, 207 (1987) (explaining that “objectives not thought to be within Article I’s enumerated legislative fields may nevertheless be attained through the use of the spending power and the conditional grant of federal funds” (internal quotation marks omitted)); United States v. Butler, 297 U.S. 1, 66 (1936) (holding that Congress’s power to place conditions on disbursement of federal funds “is not limited by the direct grants of legislative power found in the Constitution”). Thus, where Congress places conditions on a State’s receipt of federal funds—whether directly, or by delegation of clarifying authority to an executive agency—there is no commandeering of reserved State power so long as the State has “a legitimate choice whether to accept the federal conditions in exchange for federal funds.” NFIB v. Sibelius, 567 U.S. at 578.
See New York v. United States DOJ (page 60):
As the Supreme Court has observed in connection with the conditions attached to most federal funding programs: “The States are separate and independent sovereigns. Sometimes they have to act like it.” NFIB v. Sebelius, 567 U.S. at 579.
Iowa needs to act like a separate and independent sovereign by citing federal legal authority. Please amend these two bills by replacing the flawed language in HF 2589 Section 23 on page 5 and SF 2363 Section 28 on page 9 with the following:
The department shall submit a written request, in accordance with title 21 C.F.R. section 1307.03, to the Office of Diversion Control, Drug Enforcement Administration by July l, 2020, stating that chapter 124E does not create any positive conflict with state or federal drug laws and regulations and is consistent with title 21 U.S.C. section 903, and requesting formal written acknowledgement that the listing of marijuana as a controlled substance in federal schedule I does not apply to the nonprescription use of cannabis under the medical cannabidiol program established pursuant to chapter 124E.
Iowa Code Chapter 124E authorizes the cultivation of federally controlled cannabis plants by two state licensed Iowa businesses, so the exemption has to cover the entire program from top to bottom and any federal law or regulation that might rely on current federal schedule of cannabis (see, e.g., banking and federal income tax).
Failure to cite 21 C.F.R. §1307.03 (“exceptions to regulations”) and 21 U.S.C. §903 (“application of state law”) can only be interpreted to mean Iowa is not acting like a separate and independent sovereign entitled to federal funding.
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