HF 2589 / SF 2363

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.