Is Medical Marihuana Illegal Federally?

[Michael Komorn]

Is Medical Marihuana Illegal Federally?

(11-08) 17:54 PST SAN FRANCISCO -- A federal appeals court has upheld the drug convictions and five-year prison sentences of two Northern California medical marijuana activists who grew pot for themselves and their fellow patients.

Attorney Dale Schafer began growing marijuana for his wife, physician Marion "Mollie" Fry, on their property in the town of Cool (El Dorado County) in 1998. She had secured a doctor's recommendation for the drug to ease the effects of chemotherapy after breast cancer surgery.

Schafer later started using medical marijuana for back pain and other ailments. The couple began distributing the drug to other patients in 1999 and contacted sheriff's deputies, who let them continue under California's medical marijuana law.

Agents raid home

In September 2001, however, federal agents and local officers raided their California Medical Research Center and their home with a warrant under the U.S. drug law that bans using, growing or selling marijuana.

Schafer and Fry were indicted in 2005 and convicted in 2007 of conspiring to grow at least 100 plants.

U.S. District Judge Frank Damrell of Sacramento called it a "sad day" when he sentenced them to the mandatory five-year terms in March 2008. He allowed them to remain free on bail during their appeal.

Schafer said the couple ran a humanitarian enterprise that served more than 10,000 patients from 1999 to 2005. But prosecutors said the couple collected between $750,000 and $1 million in fees for marijuana recommendations during the two years and two months covered by the charges.

In their appeal, defense lawyers challenged Damrell's refusal to let the couple present evidence that two sheriff's officers had entrapped them. They said the officers had told Schafer and Fry that their operations were legal while allegedly working undercover for the federal government.

Pair 'were not misled'

But the Ninth U.S. Circuit Court of Appeals in San Francisco said Monday that the clinic had told patients in writing that marijuana remained illegal under federal law. That showed that Schafer and Fry "were not misled into believing that their conduct was permissible," Judge Richard Tallman said in a 3-0 ruling.

Schafer, 56, and Fry, 54, said they would appeal to the U.S. Supreme Court. Schafer said the couple probably wouldn't have been raided or prosecuted under the Obama administration's year-old policy of not interfering with medical marijuana operations that comply with state law.

They said they had turned down a pretrial offer from prosecutors that would have sent Schafer to prison for two years and allowed Fry to avoid imprisonment while permanently surrendering her medical license.

"I was driven by the calling that I felt, to help the dying and the sick and the disabled," Fry said.

U.S. Attorney Benjamin Wagner issued a statement deriding California's "so-called 'medical' marijuana law." He said the ruling reaffirmed that the federal drug law is "separate and distinct from the state law."

E-mail Bob Egelko at begelko@sfchronicle.com.

 

 

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/11/08/BAA51G906B.DTL#ixzz14uN529qW

 

 

 

 

Michael A. Komorn

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[DT61]

There had to be an issue, unreleased - or unspoken - that caused the higher profile. Perhaps it was the sheer quantity of patients. Others have been left alone.

[Michael Komorn]

Probably correct on that. Or it may just have been success that drew attention. Also the arrests were during the Bush era. Some of the comments indicated that under Obama an arrest or indictment may not have happened. It is a very cold story, felt chilled reading it. Not chilled in a good way either.

[hofner67]

What is your take on the Wal-mart case? How is it already in Federal Court?

[phaquetoo]

There had to be an issue, unreleased - or unspoken - that caused the higher profile. Perhaps it was the sheer quantity of patients. Others have been left alone.

 

 

Yea here is a few issues that I would think created some problems for them!

 

the couple ran a humanitarian enterprise that served more than 10,000 patients from 1999 to 2005. But prosecutors said the couple collected between $750,000 and $1 million in fees for marijuana recommendations during the two years and two months covered by the charges.

The couple began distributing the drug to other patients in 1999 and contacted sheriff's deputies, who let them continue under California's medical marijuana law.

 

how easy is that? give pt's recomendations, and start selling them weed!

 

They went to the sheriff deputys, and the sheriff deputys started working under cover for the government?

 

Yep there is prob a whole lot not being told! We only know what big brother wants us to know!

 

 

Peace

FTW

Jim

[DenturesLost]

What is your take on the Wal-mart case? How is it already in Federal Court?

Because that is where it was filed.

[stuckinlodi]

I'm not really up-to-date on the laws in California, but it seem to me that the reason that these folks got in trouble is bacause they went from a nice quite personal grow op intended for personal pain relief to a million dollar enterprise that was supplying 10,000 (come on, 10,000!) people with mmj. Thats bound to catch the attention of the feds and regardless of Cali's state laws, it is still illegal under fed law. I'm not saying these people deserved this, but they should have seen it coming. And is it possible that maybe, just maybe, greed was a factor it them expanding their operation to such a big enterprise? And if it was, maybe they kinda got what was coming to them. Its easy to start out with good intentions. As they say: the road to Hell is paved with them.

[peanutbutter]

OK Michael .. In response to your headline question:

 

No .. marijuana is legal, federaly

 

(here we go ..)

 

The location of cannabis within schedule 1 is being maintained by fraud.

 

Since it is being illegally maintained there, and no proper determination has been made for it's proper placement, it isn't in any schedule at all right now.

 

(ready .. aim .. fire at will)

[bobandtorey]

And the feds still give MMj to 5 people here in the good old U.S.A and grow Meds in Mississippi

[pic book]

There are literally dozens of folks, US Citizens, California or former California residents similarly prosecuted, fined, stripped of assets and currently Federally imprisoned for operations that were similar in scope and lucrativity to this case, generating $500,000 to $4 million annually that have been prosecuted in California up to 5 years (that's FIVE YEARS) after the dispensaries closed their doors, some of these were folks brought back by grab and fly into the US by the DEA to face late-arriving Federal charges. A sure-fire prescription for future trouble: sell big bucks pot, file the sale amounts on Federal tax return, pay incoime taxes on marijuana sales and advertise to pump sales. This way the DEA has your paper records and audio/video of you and your radio/TV adds in their files when they get around to you and your(defunct)dispensary. Goddammit fellas Obama does NOT run the Justice Department, career prosecutors do.

[mibrains]

so then who do we have to bombard to change the classification..seems to me, if thats the problem, then lets settle it. because if we just call and say please they gotta listen right?

 

 

OK Michael .. In response to your headline question:

 

No .. marijuana is legal, federaly

 

(here we go ..)

 

The location of cannabis within schedule 1 is being maintained by fraud.

 

Since it is being illegally maintained there, and no proper determination has been made for it's proper placement, it isn't in any schedule at all right now.

 

(ready .. aim .. fire at will)

[Michael Komorn]

OK Michael .. In response to your headline question:

 

No .. marijuana is legal, federaly

 

(here we go ..)

 

The location of cannabis within schedule 1 is being maintained by fraud.

 

Since it is being illegally maintained there, and no proper determination has been made for it's proper placement, it isn't in any schedule at all right now.

 

(ready .. aim .. fire at will)

 

PB,

You know that the question posed was meant to be rhetorical. This is how I would have answered it.

 

 

Although federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.

 

That the MMMA specifically in 333.26422 Findings, declaration.

 

Sec. 2. The people of the State of Michigan find and declare that:

 

(b) Data from the Federal Bureau of Investigation Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.

 

© Although federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. The laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington do not penalize the medical use and cultivation of marihuana. Michigan joins in this effort for the health and welfare of its citizens.

 

This Honorable Courts indicates that it is compelled to apply the Federal Controlled Substance Act [hereinafter “CSA] pursuant to some obligation found in the Supremacy Clause. The U.S. CONST. art. VI., cl. 2. Specifically, the Supremacy Clause states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 

The Supremacy Clause arose out of the possibility of conflict between state and federal law. The Clause represented a “mechanism for resolving specific clashes” by providing that federal enactments would take precedence in any conflict. As a result, the clause does not constitute a separate grant of federal power of a kind that courts are authorized to interpret.

 

That as a factual matter, this Honorable Court is not a Federal Court. This Honorable Court is not a Federal Judge. The jurisdiction in this matter is not a Federal Jurisdiction. The agency prosecuting this matter is not a Federal agency. That as this Honorable Court makes it factual and legal determinations in this matter, at no time will it be asked to make a legal determination of whether State or Federal was to be applied in this case. That if in fact this issue arose, respondent concedes that this Honorable Court would be compelled to enforce Federal Law. The facts before this Honorable Court do not suggest that any Federal agency is involved in the prosecution in this case. That it is undisputed that at any time during the proceeding of this case, will federal law have any impact on the outcome of this case. The fact is that no Federal Law is being applied in this case. Therefore there is no supremacy issue, and no preemption issue for this Court to rule upon. The controlling law in this case is State law, and the protections afforded the Respondent pursuant to the MMMA.

 

Although federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.

 

There can be no question that the Michigan electorate has chosen to tread a different path than the federal government when it comes to medical mariuana, this does not mean that Michigan laws in this area are preempted. Federal officials may enforce the federal government’s prohibition on marijuana for all purposes, even in derogation of the medical marijuana laws of the tate, if that is how they choose to expend their resources. Michigan voters, however, do not believe that the arrest and prosecution of seriously ill persons for whom marijuana provides much-needed, often life-saving, relief is worth the cost. Our federalist system of government allows for both sovereigns to control their own purse strings.

 

It is noteworthy that the federal government has not itself claimed that its laws preempt and invalidate Michigan medical marijuana laws. To the contrary, out of respect for our federalist system of government and the historical power of the states over matters of health and safety, Congress included in the Controlled Substances Act (21 U.S.C. § 801 et seq.) [hereinafter “CSA”] an express anti-preemption provision that disclaims any intent that the federal drug laws preempt those of the states, unless there is a positive conflict “so that the two cannot consistently stand together.” Reading this provision in the case to reject the preemption challenge will effectuate Congress’ intent for the states to have wide latitude in regulating drugs within their borders. Reading the provision in the opposite fashion, on the other hand, will not only do violence to this intent, but will unnecessarily disturb the delicate federal-state balance, as hundreds, if not thousands, of state drug laws will be imperiled. While this Honorable Court may not agree with the medical marijuana policy choice of the Michigan electorate, this is not a reason to set the state laws aside. State laws and the federal laws can coexist.

 

 

 

PREEMPTION DOES NOT APPLY TO THE MMMA

 

A. Legal Standards

 

“[C]ourts are reluctant to infer preemption, and it is the burden of the party claiming that Congress intended to preempt state law to prove it.” (Viva! Int’l Voice for Animals v. Adidas Prom. Retail Ops., Inc. (2007) 41 Cal.4th 929, 936 [quoting Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815]; accord Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 956-957.) Courts “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” (Viva! Int’l, supra, 41 Cal.4th at p. 938 [quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230]; accord United States v. Bass (1971) 404 U.S. 336, 349; see also Bronco Wine Co., supra, 33 Cal.4th at p. 974 [in areas of traditional state regulation, a “strong presumption” against preemption applies and state law will not be displaced “unless it is clear and manifest that Congress intended to preempt state law”].) The strong presumption against preemption “’provides assurance that the “federal state balance” will not be disturbed unintentionally by Congress or unnecessarily by the Courts.’” (Olszewski, supra, 30 Cal.4th at p. 815 [citation omitted].) To find preemption, the Court must be “absolutely certain that Congress intended” that result. (See Gregory v. Ashcroft (1991) 501 U.S. 452, 464.)

 

Ordinarily, there are four ways in which a statute may be preempted:

 

(1) where Congress enacts a statute that explicitly preempts state law, (2) where state law actually conflicts with federal law, (3) where federal law occupies a field to such an extent that it is reasonable to conclude that Congress does not wish the states to regulate in that area, or (4) where the state law at issue stands as an obstacle to the accomplishment of the objectives of Congress. (Viva!, supra, 41 Cal.4th at p. 936.) At its core, the preemption question is one of Congressional intent, which is the “ultimate touchstone.” (Viva!, supra, 41 Cal.4th at p. 939 [quoting Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485]; Jevne v. Superior Court (2005) 35 Cal.4th 935, 949.)

 

To determine whether Congress intended to preempt state law, courts look to the statutory text as the best indicator of Congress’ intent. (Sprietsma v. Mercury Marine (2002) 537 U.S. 51, 62-63.) Where, as here, “Congress has expressly identified the scope of the state law it intends to preempt, [courts] infer [that] Congress intended to preempt no more that that absent sound contrary evidence.” (Viva!, supra, 41 Cal.4th at p. 945; see also Sprietsma v. Mercury Marine, supra, 537 U.S. at pp. 62-63 [where a stature “contains an express pre-emption clause, our ‘task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent’”] [quoting CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658, 664]; Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525, 541 [“In these cases our task is to identify the domain expressly preempted, [citation], because ‘an express definition of the pre-emptive reach of a statute . . . supports a reasonable inference . . . that Congress did not intend to preempt other matters”] [quotation omitted]; Jevne v. Superior Court, supra, 35 Cal.4th at p. 950 [inclusion of a savings clause in a statute negates field preemption].)

 

Under our federalist system of government, the states have traditionally regulated the practice of medicine and defined crimes. (See Whalen v. Rose (1977) 429 U.S. 589, 603 fn. 30 [collecting cases]; Medtronic, Inc. supra, 518 U.S. at p. 475 [noting that States “primarily and historically” have power “to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons” and the “historic primacy of state regulation of matters of health and safety”] [citing cases].) Due to this historical allocation of power to the states regulate in these areas, as well as their status as “independent sovereigns in our federalist system,” the United States Supreme Court has concluded that a clear statement is required before the Court will conclude that Congress intended to interfere with those powers. (Medtronic Inc., supra, 518 U.S. at pp. 475 & 485.) Express preemption provisions in these areas are to be interpreted narrowly. (Ibid.)

 

 

B. The CSA Expressly Provides for Federal Preemption of State Drug Laws Only Where There Is a “Positive Conflict” Such that the Two Sets of Laws Cannot Stand Together

 

It was out of respect for the traditional role of the states in regulating medicine and crime that Congress included in the CSA an express preemption provision, which contains an unambiguous expression of intent not to preempt state law. 21 U.S.C § 903 provides:

 

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

 

This express preemption provision has been referred to as the CSA’s “anti-preemption” provision. (Cf. United States v. $79,123.49 in United States Cash & Currency (7th Cir. 1987) 830 F.2d 94, 98 [referring to 21 U.S.C § 903 as the “anti-preemption provision of Controlled Substances Act”]; City of Hartford v. Tucker (Conn. 1993) 621 A.2d 1339, 1341 [same]; Am. Jur. 2d Drugs and Controlled Substances § 30 (2007) [same]; see also Gonzales v. Oregon (2006) 546 U.S. 243, 251 [“The CSA explicitly contemplates a role for the States in regulating controlled substances, as evidenced by its pre-emption provision”].) It precludes obstacle preemption.

 

 

Because the scope of federal preemption is defined by congressional intent (Viva!, supra, 41 Cal.4th at p. 939; Jevne v. Superior Court, supra, 35 Cal.4th at p. 949), the Superior Court correctly found that Congress’ use of the term “positive conflict,” such that the state and federal cannot stand together, evidences Congress’ intent that obstacle preemption not apply. (See CT., vol. 6. p. 1229; cf. Viva!, supra, 41 Cal.4th at p. 945 [where “Congress has expressly identified the scope of the state law it intends to preempt, [courts] infer [that] Congress intended to preempt no more that that absent sound contrary evidence”]; see also Gonzales v. Oregon, supra, 546 U.S. at pp. 270-271 [“Further cautioning against the conclusion that the CSA effectively displaces the States’ general regulation of medical practice is the Act’s pre-emption provision, which indicates that, absent a positive conflict, none of the Act’s provisions should be ‘construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates . . . to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State’”] [quotation omitted]; United States v. Oakland Cannabis Buyers’ Coop. (2001) 532 U.S. 483, 502 [conc. opn. Of. Stevens, J.] [“courts [must], whenever possible, ... avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a state have chosen to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country”] [citations and quotation marks omitted].)

 

In arguing for preemption in the face of this clear expression of Congressional intent, the Counties contend that Congress’ use of the term “conflict” means that ordinary conflict preemptions apply, since the modifier “positive” has no meaning because there is no such thing as a negative conflict. (See Appellant County of San Diego’s Opening Brief [hereinafter “San Diego Brief”] at p. 19 7 fn. 10; Opening Brief of Plaintiffs and Appellants County of San Bernardino and Gary Penrod [hereinafter “San Bernardino Brief] at p. 17].) This attempt to read Congress’ limitation on the scope of conflict preemption out of the statute violates longstanding principles of statutory construction.

 

One well-recognized maxim of statutory construction is that significance must be attributed to every word and phrase of a statue, since the Legislature cannot be presumed to have engaged in idle acts. (See United States v. Menasche (1955) 348 U.S. 528, 538-539 [quoting Montclair v. Ramsdell (1883) 107 U.S. 147, 152]; People v. Woodhead (1987) 43 Cal.3d 1002, 1010; Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805.) Here, not only does Congress define “positive conflict” as meaning that the two sets of statutes cannot coexist, but this can be divined from the ordinary meaning of “positive.” The Webster’s Dictionary defines “positive” as “admitting of no question,” “fully assured,” and “not speculative or theoretical.” Thus, one can glean from the language of § 903 that Congress intended the CSA to preempt state drug laws only where it is proven that compliance with both sets of laws is impossible. (Cf. Viva, int’l, supra, 41 Cal.4th at p. 944.)

 

Thus, in Southern Blasting Services v. Wilkes County (4th Cir. 2002) 288 F.3d 584, the court was called upon to apply the preemption provision of the federal Hazardous Materials Transportation Act (Id. at pp. 587-589.). Like Section 903, that statute provides that states may legislate in the areas of explosives “unless there is a direct and positive conflict between [state and federal law] so that the two cannot be reconciled or consistently stand together.” (18 U.S.C. § 848.) The court interpreted this express preemption provision as “restat[ing] the principle that state law is superseded in cases of actual conflict with federal law such that ‘compliance with both federal and state regulations is a physical impossibility.’” (Southern Blasting, supra, 288 F.3d at p. 590.) The court held that the applicable federal law did not preempt the state regulation because the state law “would [not] result in a violation of” the federal law. (Id. at p. 591.) The court did not, in addition, analyze the state regulation under obstacle preemption principles. (See also Gonzales, supra, 546 U.S. at p. 290 [dis. Opn. of Scalia, J.] [stating that, in light of express preemption provision of Section 903, a federal regulation barring physician-assisted suicide “does not purport to pre-empt state law in any way, not even by conflict preemption – unless . . . [the State law] require assisted suicide”] [italics in original].)

 

Nor does the United States Supreme Court’s decision in Geier v. American Honda Motor Co. (2000) 529 U.S. 861, compel a different result. In Geier, supra, the Court was called upon to decide, inter alia, whether the “saving” clause of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. § 1381 et seq.) precludes the operation of implied conflict preemption principles. In concluding that it did not, the Court relied heavily on the express language of the statute. The “saving” clause at issue in Geier states that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” (15 U.S.C. § 1397(k).) Because the statute is silent about the types of conflict that might cause state law to be preempted, the Court found that “[n]othing in the language of the saving clause suggests an intent to save state-law tort actions that conflict with federal regulations.” (Geier, supra, 529 U.S. at p. 869.) In doing this, however, the Court did not rule out the possibility of an express preemption provision foreclosing obstacle preemption; to the contrary, the Court stated that Congress could do this (id. at p. 872), “ut there is no reason to believe that Congress has done so here.” (Ibid.) The possibility described by the Court in Geier is precisely what is at issue here. The CSA contains an express preemption provision that rules out obstacle preemption.

 

There Is No Positive Conflict Between State and Federal Law

 

Judged by these appropriate standards, it is clear that there is no positive conflict between the challenged medical marijuana laws and the CSA. Notwithstanding attempts to create a conflict by pointing to the very different treatment of medical marijuana under state versus federal law, the important points for CSA preemption purposes are that Michigan’s medical marijuana laws do not require anyone to violate federal law, nor do they purport to immunize persons from prosecution under the CSA. (See infra at p. 18.) The federal government may, if it chooses, continue to prosecute Michiganders for cultivating and possessing marijuana for medical purposes (Gonzales v. Raich (2005) 545 U.S. 1, 28-29), but this can be accomplished while at the same time leaving Michigan’s medical marijuana laws, “which involve state law alone” (People v. Mower (2002) 28 Cal.4th 457, 465 fn. 2), intact.[1] There is no positive conflict under the CSA where, as here, the two sets of laws can stand together in this fashion. (See Viva, int’l, supra, 41 Cal.4th at p. 944 [stating that there is no conflict preemption where compliance with both federal and state law is not a “physical impossibility”] [quoting Hillsborough County v. Automated Medical Labs., Inc. (1985) 471 U.S. 707, 713].)

 

 

FEDERAL PREEMPTION OF THE MMMA IS FORECLOSED BY THE TENTH AMENDMENT

 

Indeed, if the federal government had sought to preempt state law in this area, which it has not, such “commandeering” of the states would violate the Tenth Amendment. (See Printz v. United States (1997) 521 U.S. 898, 930-31; New York v. United States (1991) 505 U.S. 144, 157; Nat’l Federation of Republican Assemblies v. United States (S.D. Ala. 2002) 218 F.Supp.2d 1300, 1352 [“the federalism concerns that the Tenth Amendment embodies counsel hesitation before construing Congress’s enumerated powers to intrude upon the core aspects of state sovereignty”].) Under the Tenth Amendment, the federal government may not “commandeer” state officials to enforce federal law -- “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” (New York, supra, 505 U.S. at p. 935.) The reason is that under our federalist system of government, sovereign states, at a minimum, must be able to control their own purse strings. As the Court stated in Printz, supra: “The power of the Federal Government would be augmented immeasurably if it were able to impress into its service--and at no cost to itself--the police officers of the 50 States.” (521 U.S. at p. 922.)

 

 

In the case before this Honorable Court the citizens of Michigan have made a decision to conserve its scare law enforcement resources by declining to arrest and prosecute seriously ill persons in need of marijuana. In April of 2009, Michigan voters enacted the MMMA. If the CSA were interpreted to preempt the state’s voluntary identification card program, this would deprive the state of the mechanism it has chosen to differentiate medical marijuana patients (whom it does not wish to prosecute) from recreational marijuana users (whom it will continue to prosecute). Lacking such mechanism, state law enforcement officers will either have to: (1) expend time and energy attempting to verify a patient’s status by other means, such as calling his doctor, or (2) burden the state’s criminal justice system by citing medical marijuana patients, only to have the prosecutor or the court verify their status and formally dismissing the charges.[2] Such compelled expenditure of state funds by the federal government is precisely the type of “commandeering” forbidden by the Tenth Amendment. (Cf. Printz, supra; New York, supra; see also New York, supra, 505 U.S. at p. 161 [“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”].)[3]

 

 

Thus, in Conant v McCaffrey (9th Cir. 2002) 309 F.3d 629, Judge Kozinski explained in a concurring opinion that the federal government’s threat of revoking the DEA licenses of California physicians who recommend marijuana to their patients violates the Tenth Amendment. (Id. at pp. 646-647 [conc. op. of Kozinski, J.].) Judge Kozinski reasoned that the federal policy targeting doctors deprives the state of the mechanism it has chosen to distinguish between legal and illegal drug use under state law. (Id. at p. 646.) This, in words borrowed from the Supreme Court, constitutes an impermissible “attempt to ‘control or influence the manner in which States regulate private parties.” (Ibid. [quoting Reno v. Condon (2000) 528 U.S. 141, 150]; see also Ibid. [“In effect, the federal government is forcing the state to keep medical marijuana illegal.”].) Because “the state is being forced to regulate conduct that it prefers to leave unregulated,” the federal policy targeting doctors violates the commandeering doctrine announced in New York and Printz. (See Ibid. at pp. 646-647.)

 

There is a Constitutional deficiency in the preemption argument by contending that cooperative federalism allows the federal government to enact regulatory programs that give the states the choice of regulating activity according to federal law or risk preemption. (See San Diego Brief at pp. 36-37.) While it is true that Congress may “offer States the choice of regulating . . . activity according to federal standards or having state law pre-empted by federal regulation” (New York, supra, 505 U.S. at p. 167), Congress has not elected not to issue this ultimatum to states in the CSA. As the examples cited by the Court in New York, supra, demonstrate, where Congress intends to offer the states the choice of regulating by federal standards or having state law preempted, it does so expressly. (See 33 U.S.C § 1313 [Clean Water Act section authorizing the EPA to recommend changes to standards promulgated by the State and, if the State fails to comply with that recommendation, the Act authorizes the EPA to promulgate water quality standards for the State]; 29 U.S.C. § 667 [Occupational Safety and Health Act section requiring approval of State health and safety standards where such standards “are or will be at least as effective in providing safe and healthful employment and places of employment as the standards promulgated under section 655 of this title which relate to the same issues”]; 33 U.S.C. § 1342, subd. (b) [Resource Conservation and Recovery Act section allowing EPA to authorize a State to supplant the federal permit program with one of its own, if the state scheme is sufficiently stringent to ensure compliance with federal standards]; 16 U.S.C. § 3115, subd. © [Alaska National Interest Lands Conservation Act section allowing for state laws that consistent with, and as protective as federal standards for the taking of fish and wildlife].) By sharp contrast, Congress has indicated in the CSA that it does not intend to force states to make such a decision. (See 21 U.S.C. § 903.) Absent such ultimatum by Congress, it cannot be assumed that it intended to conscript states to enforce its federal drug laws, in violation of the Tenth Amendment. (Cf. New York, supra, 505 U.S. at p. 175 [holding that Take Title provisions of Low-Level Radioactive Waste Policy Act violate Tenth Amendment, since they “’commandeer’ state governments into the service of federal regulatory purposes, and would for this reason be inconsistent with the Constitution’s division of authority between federal and state governments.”]; see also S.B. 420, Section 1(e) (Sept. 11, 2003) [noting that the Program Act was enacted “pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution”]; National Federation of Republican Assemblies v. United States (S.D. Ala. 2002) 218 F.Supp.2d 1300, 1352 [“the federalism concerns that the Tenth Amendment embodies counsel hesitation before construing Congress’s enumerated powers to intrude upon the core aspects of state sovereignty”].)

[DT61]

So, they are not "required" to enforce federal law but. can they enforce federal law - local or state LEO is the question with recent developments.