The Clash Between Federal Drug Law and California's "Medical Marijuana" Law: How Two Interesting Recent Events Illustrate Their Interplay

By VIKRAM DAVID AMAR
Friday, Nov. 09, 2007

Two news items during the past couple of weeks in California highlight the complicated legal and political tangle that is American federalism - the relationship between federal and state governments -- today. Both incidents involve the interplay between, on one hand, California's (now decade-old) decision to decriminalize marijuana use for medicinal purposes, and, on the other hand, the continuing illegality under federal law of all marijuana cultivation, possession, distribution and use, for any purpose.

The two events present radically different facts: One involves an alleged criminal conspiracy that is far-flung and linked to violence, whereas the other involves a civil lawsuit brought by a seemingly productive employee against his employer. Yet the two episodes, taken separately and together, nicely illustrate key aspects of the ongoing tug-of-war between so-called "states' rights" and federal supremacy.

The First Episode: The Criminal Charges Against Two Entrepreneurial Brothers

On October 30, federal drug agents executed numerous search warrants against Winslow and Abraham Norton, two young brothers (Winslow is 26 and Abraham 23) who are alleged to have sold an estimated $49 million of marijuana at various locations in the Bay Area during the past three years. The Nortons' medical marijuana dispensary was registered and given a permit to operate under the regime prompted by California's Compassionate Use Act ("the Act"), a 1996 initiative measure adopted statewide by voters that decriminalizes, under state law, marijuana cultivation, distribution, and use in those instances where a physician has given a written or oral recommendation or approval to a patient to use marijuana.

Under the Act and subsequent implementing legislation, an Alameda County Sheriff's Deputy regularly visited the Nortons' facilities to ensure that only those persons with physician recommendations were being given the drug.

According to press accounts, the Nortons paid state and federal income taxes on (at least some) of their income, rewarded their workers well and gave them benefits, and even contributed charitably to the community.

Nonetheless, the Nortons appear to have been flagrantly violating the federal Controlled Substances Act, which designates marijuana as an illegal contraband substance whose manufacture, distribution and use is prohibited in virtually all instances.

The Constitutional Reason Federal Law Trumps California Law Here

How, some people in California are asking, can the feds impose their will on the people of California, who have chosen a different answer than has Congress to the controversial and vexing question of whether marijuana use should ever be allowed?

The answer is short and sweet: The Supremacy Clause of the U.S. Constitution makes validly-enacted federal statutes the "Supreme" law of the land, along with the U.S. Constitution itself. So, as long as the Controlled Substances Act is within Congress' constitutional powers to enact (as the Supreme Court held it was a few years ago, in Gonzales v. Raich), Californians can have no state-conferred immunity to be free from federal restraints and prosecution.

Readers who don't easily see why federal statutes ought to be supreme over - and not constrained by - inconsistent state laws may want to consider the example of Southern resistance to federal civil rights laws in the 1950s and 1960s. There too, proponents of local authority argued that the national legislative policy adopted by Congress in Washington DC - in that instance, that racial discrimination in employment and housing should be barred - should not be imposed on states and localities that had reached a different resolution as to how they believed the races ought to interact. In that setting, federal law won out. So too here.

Consider another example in which federal supremacy seems quite intuitive and attractive. Suppose Congress outlawed use of a particular environmental pollutant that many considered dangerous. If a majority of voters in any one state nonetheless wanted to allow persons within the state to use that pollutant, then those voters could decriminalize use of the pollutant under state law, but could not prevent the federal government from punishing those within the state who emit the dangerous chemical.

Is Federal Supremacy Regarding Civil Rights and Pollution Meaningfully Different from Federal Supremacy Regarding Marijuana?

One way to attempt to distinguish the civil rights and pollution examples from example taken from the marijuana setting would be to point out that unless there is federal enforcement in the civil rights and environmental law areas, innocent victims who happen to live in the permissive state may suffer. In other words, there are spillover effects from a state's decision to go its own way concerning racial discrimination and pollution - effects that may harm individuals both in that state and in other states.

But the same can arguably be said for marijuana. If, for example, marijuana use does create a risk that some persons may drive unsafely or do other unwise things while under the influence, then the effects of this behavior are not limited to the marijuana users themselves, nor are the effects even limited to Californians.

California's medical marijuana scheme undoubtedly affects the marijuana market in bordering states, and creates spillover effects in those other states. Drivers cross state lines, as does the violence that tends to follow business enterprises that are illegal in some places. It does not seem coincidental that the Norton brothers' operations involved many young, seemingly healthy customers who nonetheless have physician recommendations. Nor does it seem coincidental that the Nortons have been plagued by armed robberies; news reports suggest that, at least four times, armed assailants have either killed, shot or robbed the Nortons themselves or their employees or customers. This kind of violence rarely can be confined to one small location, or even one state.

Indeed, in upholding Congress' power to regulate all marijuana, including medicinal marijuana, the Supreme Court in Raich noted that the federal government cannot count on California to keep its medicinal marijuana - or the effects of this marijuana - within state boundaries.

The Second Event: The California Supreme Court Hears Ross v. Ragingwire Telecommunications Inc.

The second illustration that helps frame federalism issues in this area is the Ross v. Ragingwire case, in which the California Supreme Court heard oral arguments this past Tuesday. Ross is a U.S. Air Force veteran who sustained disabling injuries as a result of his military service. Since 1999, he has been taking marijuana on the advice of his physician to alleviate back pain. He was hired by the Sacramento technology company Ragingwire, which, pursuant to company policy, required him to submit to a drug test.

Ross complied, and was very open about his medicinal use of marijuana. But when his drug tests came back and they were (predictably) positive for marijuana, he was terminated. Ross then brought an action under the California Fair Employment and Housing Act (FEHA). FEHA, a state law similar to the Americans With Disabilities Act, requires employers in California to accommodate the physical disabilities of an employee or would-be employee so long as the employee can, with accommodation, perform the essential functions of the job. Ross argued that since he was disabled but could, through the use of medical marijuana, perform the essential functions of his job, Ragingwire violated his state law rights in terminating him on account of his marijuana use.

The lower courts ruled in favor of the employer, reasoning that FEHA does not generally bar employers from using drug tests or from requiring that all employees refrain from illegal drugs. Since marijuana is an illegal drug under federal law even though its use by Mr. Ross was not criminal under California law, the lower courts reasoned, employers can terminate marijuana users.

How Is the California Supreme Court Likely to Decide the Ross Case?

Now, the California Supreme Court must decide how to interpret the FEHA in light of this complicated interaction with the federal Controlled Substances Act.

A few things seem clear. One is that federal law could, if Congress wanted it to, explicitly empower employers to discriminate against marijuana users, even if marijuana use is decriminalized under state law. In legal parlance, Congress could, if it wanted to, "preempt" state FEHA claims based on Ross' theory.

But nothing in the federal Controlled Substances Act or elsewhere in federal law seems to say or do that. In other words, there is no federal preemption or (as in the Norton case) federal enforcement of federal law. Instead, there is only the question of whether FEHA claims, as a matter of California state law, can be based on failure to accommodate medicinal marijuana users, given that marijuana is a federally-proscribed substance.

In deciding what FEHA means, or should mean, the California Supreme Court needs to balance a number of factors. First, if Ross prevails, then at a minimum, California employers who are constrained to allow medicinal marijuana should not be held liable under state tort claims for any injuries traceable to the marijuana use. (The state Supreme Court should have the power to confer this tort immunity, since it fashions California tort law. In contrast, the California Justices cannot immunize employers from liability under federal law, but hiring medicinal marijuana users wouldn't seem obviously to violate any federal law.)

Second, even if the specter of state tort liability is removed from employers, it is still not clear whether they should be forced to hire persons who are breaking federal law. Should an employer be forced to bear the (small but perhaps non-trivial) risk that his employee will be arrested by the feds (and thus unavailable for work)? Or that the workplace may be the target of a federal law enforcement search? Or that residual marijuana in the employee's physical system will affect his job performance?

On that last point, recall that FEHA claims are viable only if the employee can perform the essential job functions. So ruling for Ross wouldn't require employers to hire employees whose medical marijuana use deeply impairs job performance. Still, there is a difference between performing the essential functions of a job and excelling at the job, and there is an argument that an employer should be free to pursue excellence, not bare competence, when a federally-proscribed drug is responsible for any lapse in job performance.

Finally, and perhaps most importantly, the California court will have to consider what the California legislature intended when it enacted a provision in 2003 that made clear that employers did not have to accommodate medical marijuana "use" on the jobsite "premises" or during the hours of employment. Does this provision suggest that accommodation is required so long as the medicinal marijuana is ingested off the employer's property? Or does this language create no such strong inference? And what does "use" mean here, anyway? Is a person "using" marijuana on the jobsite if it is still in her bloodstream when she is on the job, even though she inhaled it at home?

These and other questions are the ones the California Supreme Court's Justices will grapple with, as they issue an opinion some time in the next few months trying to make sense of the federal-state medicinal marijuana hash. Whatever result the Court reaches, both the decision and the fallout should be very interesting.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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