Vice Squad
Sunday, January 27, 2008
Medical Marijuana Use: States vs. the Congress

The recent decision by the California Supreme Court upholding the right of employers to fire employees who use marijuana for medical purposes in compliance with California’s Compassionate Use Act has continued the troubled history of medical marijuana use in California and other states that have made such use legal. One of the arguments of the Court’s majority was that marijuana use for any purpose remains illegal under federal law and California law “does not require employers to accommodate the use of illegal drugs.” This discussion reminded me of a paper by Robert Mikos that he presented at the Midwestern Law and Economics Association meetings in October of last year. The paper, which was a work in-progress, discusses medical marijuana use as a case study of the power of the states to authorize activities prohibited under the federal law (here is an abstract). I think the paper makes some interesting points with respect to medical marijuana use and it might be useful to summarize Mikos’s central argument here.

As Mikos points out, when the US Congress has the authority to regulate an activity, this authority trumps the conflicting state laws. It follows that when the Congress authorizes an activity prohibited by state law, the latter is unenforceable and, therefore, irrelevant. The situation is different, however, when Congress prohibits an activity that is permitted by the state. This is because the Congress does not have a general authority to command the states to undertake a certain action. Therefore, as long as the states that permit medical marijuana use limit themselves to not prosecuting the users (as opposed to actively assisting marijuana growers, helping them procure marijuana, etc.) there is nothing that the federal authorities can do against the state. Of course, the federal authorities can still prosecute medical marijuana users under federal law, but the feds simply lack the enforcement powers to do this on a massive scale (Mikos cites another source stating that only about 1% of all marijuana cases are handled by federal authorities). The state, however, may not be able to protect effectively information it gathers as part of its registration process about medical marijuana users and their enablers (e.g., caregivers or doctors who prescribe it) because the feds do not have to respect state confidentiality laws. Therefore, if the state wants to control and monitor medical use of marijuana by registering users and enablers, it puts them in danger of federal prosecution. This results in two potential problems. First, states may decide not to register medical marijuana users, as California, Maine, and Washington have apparently decided to do. Second, in the states that require registration, the eligible users might not want to register. Neither outcome is presumably desirable either from the state or even from the federal point of view. For example, if the states do not require registration of eligible medical marijuana users, such eligibility may be ascertained ex post, making it costlier for the state law enforcement to verify it. Also, the eligible users may suffer confiscations and even brief incarceration while their eligibility is verified. All this may significantly reduce the desire and ability of the state’s law enforcement agencies to prosecute all marijuana users, whether eligible for medical use or not.

Mikos’s policy conclusion is that “Congress may find it worthwhile to shield state registries from federal law enforcement agents, in order to preserve some level of control of marijuana at the state level.” My view is that it is hard to expect this level of rationality from our lawmakers on this issue. Otherwise, the current complete prohibition regime with respect to marijuana at the federal level would have probably ended a long time ago.

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