Medical Marijuana in Colorado and the Future of … Marijuana in Colorado and the Future of Marijuana Regulation in the United States Sam Kamin* I. I ... Women in bikinis parading

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Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States

Sam Kamin*

I. INTRODUCTION

My contribution to this special issue will describe the phenomenon of Colorado’s medical marijuana industry and speculate about what Colorado can tell us about the future of marijuana regulation in the United States. I have had an opportunity to interview more than twenty players in this industry—including law enforcement officials, activists, lawyers, and dispensary owners—over the last year and to speak informally with a great many more. Based on these discussions and other research that I have done on the emergent industry in my state, this article describes how the industry has grown in Colorado since 2008, puts this transformative change into perspective, and then draws some tentative conclusions about the future of drug policy in the United States, the appropriate federal–state balance in this area, and the relationship between criminal laws and broader societal norms.

II. THE EXAMPLE OF COLORADO1

In 2000, Colorado voters approved an amendment to the state constitution providing an affirmative defense to a charge of marijuana possession for approved medical marijuana patients and their designated caregivers.2 Amendment XX requires those seeking to register as marijuana patients to demonstrate a diagnosed, debilitating condition and to receive a doctor’s advice that they might benefit from the medicinal use of marijuana.3

* Professor and Director, Constitutional Rights and Remedies Program, University of Denver, Sturm College of Law. I would like to thank the organizers of this conference for inviting me to participate and for giving me the opportunity to learn from the diverse and impressive collection of panelists who were assembled for this weekend at McGeorge.

1. This section is adapted from a shorter section in Sam Kamin, The Challenges of Marijuana Law Reform, in THE IMPACT OF THE DECRIMINALIZATION AND LEGALIZATION OF MARIJUANA 6 (2011).

2. Id. COLO. CONST. art. 18, §14(2)(b) (“it shall be an exception from the state’s criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana . . . .”).

3. Id. § 14(2)(a). The term “advice” is carefully chosen. While the Food and Drug Administration may determine what drugs may and may not be prescribed by the physicians it licenses, its power to control what is discussed between doctors and patients is limited. In Conant v. Walters, the Ninth Circuit Court of Appeals held that a doctor could not, consistent with the First Amendment, be prohibited from recommending marijuana to


2012 / Medical Marijuana in Colorado

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After designating a caregiver and receiving a medical user card from the state, both the patient and the caregiver have a defense to a state prosecution for possession of a specified amount of marijuana. While not immune from search and arrest, a registered caregiver or patient cannot be convicted under the state’s marijuana laws if her possession is consistent with legitimate medical use.4 While the Colorado amendment is clear on these points, there are a number of particulars on which its lack of clarity made it something of a dead letter for the first eight years of its existence.

Principal among the ambiguities inherent in the measure was the nature of the patient–caregiver relationship. Following the passage of Amendment XX, the State Department of Public Health enacted a limit of five patients who could be associated with any particular caregiver, making the wide-scale distribution of medical marijuana practically impossible. This limit was overturned in a 2007 lawsuit claiming that the decision had been made without sufficient public involvement.5 When a public hearing was scheduled in 2009 to consider a return to the five-patient limit, hundreds of patients, caregivers, and activists showed up to oppose the rule; after nearly twelve hours of testimony, the board rejected by a vote of six to three any limit on the number of patients any single caregiver could service.6

her patients. 309 F.3d 629 (9th Cir. 2002). In states that have permitted medical marijuana’s use, a doctor’s advice or recommendation—as opposed to prescription—is something of a constant.

4. COLO. CONST. art. 18, § 14(2)(e). The Colorado statute also makes express provision for the return of medical marijuana seized by law enforcement that is later found to have been lawfully possessed.

Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal.

Id. This provision has led to the previously unimaginable result of police returning smokeable marijuana, plants, and growing equipment to those from whom it was seized. See John C. Ensslin, Judge Rules Police Must Return 39 Marijuana Plants to Couple, ROCKY MOUNTAIN NEWS (Nov. 27, 2007), http://www.rockymountainnews. com/news/2007/nov/27/judge-rules-police-must-return-39-marijuana-plants/ (on file with the McGeorge Law Review).

5. Howard Pankratz, Judge Suspends Pot-Patient Policy, DENVER POST (July 4, 2007), http://www. denverpost.com/search/ci_6293080 (on file with the McGeorge Law Review).

6. Claire Trageser, Health Board Rejects Key Medical Marijuana Changes, DENVER POST (July 20, 2009), http://www.denverpost.com/breakingnews/ci_12879779 (on file with the McGeorge Law Review); Phillip Smith, Feature: Colorado Medical Marijuana Supporters Defeat Effort to Restrict Caregivers, Dispensaries, STOPTHEDRUGWAR.ORG (July 25, 2009), http://stopthedrugwar.org/chronicle/2009/jul/25/ feature_colorado_medical_marijua (on file with McGeorge Law Review).


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Along with the electoral victory of Barack Obama the previous fall, the failure of the state to impose any limits on the number of patients each caregiver could serve was seen as an opportunity by those anxious to set up for-profit marijuana businesses. Despite deep ambiguity regarding whether Amendment XX envisioned or permitted these for-profit dispensaries7 and the fact that any sale of marijuana remained a serious federal felony,8 in just a few months the number of these businesses in Colorado went from a few dozen to several hundred.9 It was widely reported that Denver suddenly had more marijuana dispensaries than Starbucks.10 A Wild West mentality ruled the day—stories abounded of out-of-state financiers flying into Denver with bags of money, seeking to open a dispensary over the weekend.11

Despite the numbers widely published in the press, it is impossible to know exactly how many dispensaries actually sprung up during 2009; because there was literally no regulation of the burgeoning industry—not at the local level, not at the state level, and certainly not at the federal level—it is not possible to know exactly how many dispensaries actually opened their doors during this period.12 What was knowable during this period was the number of registered marijuana patients registering with the state. The state’s Department of Public Health and Welfare was charged with issuing medical marijuana licenses during this time and regularly reported general information on the number of applications received and approved; as Figure 1 demonstrates, this number climbed more than ten-fold between January of 2009 and May of 2010. During this fifteen-month period, the number of registered marijuana users in the state climbed from fewer than 10,000 to more than 100,000.13 The sheer volume of patient applications coming in during this period swamped the department, which was often running several months behind in the processing of applications.

7. The amendment mentions caregivers, but not dispensaries. COLO. CONST. art. 18, §14(2)(d) It does, as dispensary owners are quick to point out, discuss the dispensing of marijuana. See id. (“Notwithstanding the foregoing provisions, no person, including a patient or primary care-giver, shall be entitled to the protection of this section for his or her acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana for any use other than medical use.”).

8. See discussion infra Part III. 9. Christopher N. Osher, Pot Capital, U.S.A., DENVER POST (Jan 3, 2010) http://www.denverpost.com/

news/ci_14112792 (on file with the McGeorge Law Review). 10. Id. 11. See Erica Meltzer, Medical Marijuana Industry’s Growth Spurs Backlash, COLORADODAILY.COM

(Nov. 14, 2009), http://www.coloradodaily.com/ci_13789999#axzz1PLWUdM1Z (on file with the McGeorge Law Review).

12. A subject I interviewed stated that in the early days, so little was known about the extent of the industry that his department looked to advertisements in the free Denver weekly Westword in order to find out where the dispensaries were located.

13. See The Colorado Medical Marijuana Registry, COLO. DEPARTMENT OF PUB. HEALTH AND SAFETY (June 31, 2011), http://www.cdphe.state.co.us/hs/medicalmarijuana/statistics.html (on file with McGeorge Law Review) (reporting that as of June 31, 2011, the last time the public list was updated, the number of approved marijuana licenses stood at over 128,000).



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The Wild West attitude that typified the industry during this period led to

howls for reform or at least regulation of the booming marijuana industry. Women in bikinis parading on busy boulevards with sandwich boards advertising “$5 joints” and the appearance of “medical” marijuana dispensaries with names like “Daddy Fat Sacks” and “DrReefer.com” led many to believe that the term “medical” was little more than political cover for the full legalization of recreational marijuana use. When it was revealed that just fifteen Colorado doctors accounted for more than seventy-five percent of all medical marijuana recommendations (and that just five doctors accounted for more than half), criticism of the status quo only intensified.14

In the spring of 2010, the Colorado legislature debated two competing regulatory models to address the perceived problems with the burgeoning medical marijuana industry. Dubbed the industry bill and the law enforcement bill, the two alternatives had very different visions for the future of medical marijuana in Colorado. Simply put, the law enforcement bill would have put the dispensaries out of business. Among other things, it would have limited marijuana caregivers to five patients each, essentially crippling the for-profit dispensary model that then existed.15 The industry bill, by contrast, would largely have endorsed the status quo; it would have allowed dispensaries to stay in business while imposing a moratorium on the opening of any new dispensaries. In this way, the industry bill was a tremendous boon to those who entered the

14. John Ingold, 15 Colorado Doctors Make 75 Percent of Medical Pot Recommendations, DENVER

POST (Aug. 30, 2009), http://www.denverpost.com/ci_13231783 (on file with the McGeorge Law Review). 15. Dispensary advocates argued that this limit would be akin to limiting each liquor store or pharmacy

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medical marijuana business first; it created barriers to entry and clarified the legality of those dispensaries already in business.

After heavy lobbying from industry groups, law enforcement, and drug treatment professionals, Colorado lawmakers passed SB 1284, a modified version of the industry bill which created a statewide apparatus for the licensing of the marijuana industry.16 For the first time in the United States, and perhaps the world, a state regulatory regime was put in place to oversee the commercial sale of marijuana. If a dispensary owner met the law’s requirements (including state residency and, controversially, a clean criminal record) she could receive permission from the state to sell marijuana for profit. In an explicit battle between law enforcement and the nascent commercial drug industry in Colorado, the industry won—the drug-dealers trounced the drug-warriors.

Why, exactly, did the medical marijuana industry take off when it did in Colorado? And how did those seeking to sell marijuana prevail politically over those charged with protecting the public from the scourge of illicit drugs? As I have written elsewhere:

An oft-repeated explanation is that the bad economy and the attendant reduced tax base of the late 2000s made the legalization and taxation of medical marijuana attractive to legislatures and local governments looking for alternative sources of revenue.17 Furthermore, widespread commercial vacancies and bankruptcies made landlords and lenders more willing to deal with those operating at the fringes of legality. Finally, the election of Barack Obama in late 2008 was seen by almost everyone in the emerging marijuana industry as a harbinger of a change in federal marijuana policy. 18

As this article discusses below, the President has taken a much more nuanced—and often overtly hostile—policy than legalization advocates might have hoped.

III. MARIJUANA AND THREE-LEVEL FEDERALISM

Nearly every human activity in this country is regulated to some degree at three different levels of government—federal, state, and local. What is extraordinary about the current state of medical marijuana in the United States today, however, is the disparity in the way the subject is treated at these three

16. COLO. REV. STAT. ANN. §§ 12-43.3-101 to 901 (West 2010). 17. Kamin supra note 1, at 10. In interviews, those in the industry repeatedly stated their willingness to

deal with state regulation and taxation. Dispensary owners believe that once revenue from marijuana sales is budgeted by the state government it will make it difficult, if not impossible, for the state to wean itself from marijuana revenue.

18. Id.



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different levels—it is seen as a serious felony (albeit an under-enforced one) at the federal level, as something akin to a constitutional right at the state level, and as either a nuisance to be regulated or as a tax source to be exploited at the local level. No other issues of the day—not abortion, not alcohol, not prostitution, not gambling, not health care—is treated quite so disparately by those various government entities that regulate it. This section investigates this complicated dynamic, explaining the tensions it creates before turning to some tentative predictions about the future of marijuana regulation in the United States.

A. The State–Federal Junction

1. Medical Marijuana Today

As of the summer of 2011, nearly one-third of states plus the District of Columbia now have medical marijuana provisions on their books.19 Most of these provisions are similar to Colorado’s, allowing a doctor’s diagnosis and recommendation to qualify one for an exemption from enforcement of the state’s marijuana prohibition laws. This increased willingness of the states to experiment with alternative ways of regulating cannabis stands in strong contrast to the total prohibition on marijuana that has existed at the federal level for more than three-quarters of a century.20 Under the Controlled Substances Act (CSA) the federal government continues to treat marijuana as a Schedule I narcotic—one that cannot be prescribed by any physician licensed by the Food and Drug Administration—and to treat its distribution or manufacture as a serious felony.21 Although there have been legislative attempts to repeal this classification and to permit marijuana to be prescribed or recommended for patients, these attempts have all failed.22 Furthermore, in 2005, the Supreme Court reaffirmed the power

19. ALASKA STAT. §§ 17.37.010–.080 (2010); ARIZ. REV. STAT. ANN. §§ 36-2801 to 2819 (2009); CAL. HEALTH & SAFETY CODE §§ 11362–11362.9 (West 2007); COLO. CONST. art. 18, § 14; HAW. REV. STAT. §§ 329-121 to 128 (Supp. 2009); ME. REV. STAT. ANN. tit. 22, §§ 2421–2430 (Supp. 2010); MICH. COMP. LAWS

ANN. §§ 333.26421–.263430 (West Supp. 2011); MONT. CODE ANN. §§ 50-46-101 to 210 (2009); NEV. REV. STAT. §§ 453A.010–.810 (2003); N.J. STAT. ANN. §§ 24:6I-1 to 2 (Supp. 2011); N.M. STAT. ANN. §§ 26-2B-1 to 7 (2007); OR. REV. STAT. §§ 475.300–375 (2009); R.I. GEN. LAWS §§ 21-28.6-1 to .7-1 (Supp. 2010); VT. STAT. ANN. tit. 18, §§ 4472–4474d (2010); WASH. REV. CODE ANN. §§ 69.51A.005–.901 (West 2007 & Supp. 2011).

20. See, e.g., Kamin, supra note 1, at 6 (“Marijuana has remained a prohibited substance since the 1930’s”); Michael Vitiello, Proposition 215: De Facto Legalization of Pot and the Shortcomings of Direct Democracy, 31 U. MICH. J. L. REFORM 707, 757 (1998) (describing the sordid history of marijuana’s initial criminalization in the United States); Ruth C. Stein & J. Herbie Di Fonzo, The End of the Red Queen’s Race: Medical Marijuana in the New Century, 27 QUINNIPIAC L. REV. 673, 678 (2009) (suggesting that as more states lessen restraints on marijuana use, vigorous opposition by the federal government will increase).

21. 21 U.S.C. §§ 801–952 (2006); see 21 U.S.C.A § 812(a)(1) (West Supp. 2011) (defining Schedule I. drugs as those with a high potential for abuse, without currently accepted medical use and for which “there is a lack of accepted safety for use of the drug . . . under medical supervision”).

22. See 153 CONG. REC. H8483–84 (daily ed. July 25, 2007) (Congressional debate of the Hinchey–



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of Congress to regulate marijuana under the Commerce Clause—even if that marijuana is grown in a state for sale and use wholly within that state.23

Barring an unlikely policy change by Congress, therefore, every sale of marijuana in every state with a medical marijuana provision on the books will continue to constitute a serious federal crime. While states can choose not to enforce their own criminal laws against those providing or using marijuana for medical purposes and can choose not to enforce any federal law with which they disagree, they cannot legalize marijuana outright. No matter how beneficently a state views the medical use of marijuana, its use (as well as its cultivation and provision) remains illegal in the eyes of the federal government.

What is more, it is now clear that compliance with a state medical marijuana provision is not a defense in a federal prosecution under the CSA. Even in those states that have made marijuana possession by certain persons for certain purposes legal, the federal government retains the power to enforce federal drug laws against those very persons.24 This position was clarified in 2001 when the United States Supreme Court held that there is no medical necessity exception implied in the CSA and that a defendant in a federal prosecution is essentially barred from even raising medicinal use or compassionate motives as a defense.25

There was hope among those in the medical marijuana community that the election of Barack Obama in 2008 would change this enforcement dynamic. When running for president, Obama at least hinted that he would change the way the nation’s drug laws, principally the regulation of marijuana, are enforced. Playing to the youth vote that was such an integral part of his campaign, candidate Obama repeatedly intimated that his administration would at least deemphasize the enforcement of federal marijuana laws in those states where voters had approved its medicinal use.

His endorsement was cagey, however. In one interview, Obama appeared to say that the use of marijuana was appropriate to treat cancer and other diseases, but he then backtracked just as quickly.26 While endorsing the use of marijuana to treat some conditions because he viewed it is no different than morphine or any other drug, Obama went on to say that he would not approve of “mom and pop” stores selling marijuana or people “growing their own.”27 He further stated that, although he might be sympathetic to changing the nature of the federal

Rohrabacher Amendment). Kamin supra note 1, at 6–7.

23. Gonzales v. Raich, 545 U.S. 1, 2 (2005). 24. See infra note 29. 25. United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 491 (2001). 26. Interview by Gary Nelson with Barack Obama, then-Democratic presidential primary candidate, in

Bedford, Or. (Mar. 22, 2008), available at http://www.youtube.com/ watch?v=Ad9whO0VwKk (on file with McGeorge Law Review).

27. Id.



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regulation, the chances of it being a high priority in his administration were virtually zero.28

Under President Obama, the Justice Department of Attorney General Eric Holder has continued this string of mixed signals regarding his department’s enforcement of federal marijuana laws. On October 19, 2009 a Justice Department memorandum written by David W. Ogden stated that “[t]he Department of Justice is committed to the enforcement of the Controlled Substances Act in all states. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels” 29 However, the very same memo stated that going after those who are in clear and unambiguous compliance with state medical marijuana provisions would be an inefficient and poor use of federal resources.30

As a general matter, pursuit of [Departmental] priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.31

Of course, as we have seen, the line between commercial and medical use of marijuana is hardly a bright one. In Colorado, California, and other medical marijuana states, marijuana is both medicinal (at least in name) and commercial. While medical marijuana advocates seized on Obama’s campaign statements and selected portions of the Ogden memo as evidence of a hands-off policy with regard to those in the medical marijuana industry, the truth has proven significantly more complicated.

This became clear when the Justice Department released a new marijuana enforcement memo in the summer of 2011. This memo sought to clarify the tension between the permission seemingly granted to medical use and the government’s continued opposition to the commercial cultivation and sale of the drug. If the Ogden memo created confusion on this point, the 2011 memo sought to dispel it:

28. Id. 29. See Memorandum from David W. Ogden, Deputy Att’y Gen., to selected U.S. Att’ys (Oct. 19, 2009)

[hereinafter Ogden Memo], available at http://www.justice.gov/ opa/documents/medical-marijuana.pdf (on file with the McGeorge Law Review).

30. Id. at 1–2. 31. Id.



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The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution, and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of the millions of dollars based on the plant cultivation of tens of thousands of cannabis plants.

The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling, or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with the resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financing laws.32

Any doubt that remained after the issuance of the 2011 memo regarding the federal government’s continued distaste for the medical marijuana industry was removed on October 7, 2011, when California’s four United States Attorneys jointly announced that a federal grand jury had returned indictments against several dispensary owners throughout the state, charging them with violations of the CSA.33 What is more, the U.S. Attorneys sent cease-and-desist letters to a number of dispensaries around the state, giving them forty-five days to close their operations or face prosecution as well.34 Perhaps even more ominously for the industry, the U.S. Attorneys revealed that they had sent letters to the landlords of a number of dispensaries, requiring them to evict their tenants or face the civil forfeiture of their property.35 Through these actions, the U.S.

32. Memorandum from James M. Cole, Deputy Att’y Gen., to U.S. Att’ys (June 29, 2011) [hereinafter Cole Memo], available at http://www.aclu.org/files/drugpolicy/june_2011_guidance_regarding_medical_ mariju.pdf (on file with the McGeorge Law Review).

33. See, e.g., Feds Warn, Indict California Medical Marijuana Dispensary Operators, KABC-TV L.A., Oct. 7, 2011, http://abclocal.go.com/kabc/ story?section=news/state&id=8383655 (on file with the McGeorge Law Review) (describing recent federal law enforcement actions against California marijuana dispenseries).

34. Id. 35. Id.



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Attorneys made unmistakably clear that they were willing to use both the criminal and civil tools of the CSA against the medical marijuana industry.

What is more, the federal attack on medical marijuana appears to be coming from all directions at once: The Internal Revenue Service has recently announced that companies in the business of dispensing medical marijuana may not deduct their business expenses as other business do36 and has sought to collect back taxes from those it believes wrongfully claimed deductions in violation of this policy.37 In addition, the Bureau of Alcohol, Tobacco, and Firearms sent a letter in September 2011 to all licensed firearms dealers, instructing them that all licensed marijuana patients were prohibited under federal law from obtaining firearms.38 At least one state’s attorney general has criticized the ban.39 A Nevada woman has challenged the ban in federal court after being denied a handgun she sought for self-protection because the seller was aware that she was a medical marijuana patient.40 Coupled with the refusal of an increasing number of banks to do business with those in the industry (concerned, perhaps by the Justice Department’s invocation of the specter of money-laundering charges against those who do business with marijuana dispensaries), it is becoming harder and harder for marijuana businesses to continue to do business at all.

Thus, 2011 proved to be something of a slow-motion assault on the medical marijuana industry. Although it has always reserved the power to do so, the Justice Department has not simply swept into dispensaries, seizing marijuana, cash, and property. Instead, the government has moved slowly and on many fronts—it has announced its power to pursue marijuana dispensaries and has taken on the industry civilly, criminally, and through tax laws and firearm

36. Letter from Andrew J. Keyso, Deputy Assoc. Chief Counsel, IRS, to Congressman Barney Frank et al., U.S. House of Reps. (Dec. 10, 2010), available at http://ww.irs.gov/pub/irs-wd/11-0005.pdf (on file with the McGeorge Law Review) (“Section 280E of the Code disallows deductions incurred in the trade or business of trafficking in controlled substances that federal law or the law of any state in which the taxpayer conducts the business prohibits.”).

37. Al Olson, IRS Ruling Strikes Fear in Medical Marijuana Industry, MSN.COM, Oct. 5, 2011, http://bottomline.msnbc.msn.com/_news/2011/10/04/8153459-irs-ruling-strikes-fear-in-medical-marijuana-industry (on file with the McGeorge Law Review) (quoting a target of IRS enforcement as saying: “I see only two outcomes here: Either this IRS assessment has to change or we go out of business. There really isn’t a middle ground for us.”).

38. Open Letter from Arthur Herbert, Ass’t Dir., Enforcement Programs & Servs., ATF, to All Federal Firearms Licensees (Sep. 21, 2011), available at http://www.nssf.org/share/PDF/ATFOpenLetter092111.pdf (on file with the McGeorge Law Review) (“[A]ny person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medical purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”).

39. Matt Volz, Montana Objects to Gun Ban for Medical Pot Users, ASSOCIATED PRESS, Oct. 3, 2011, available at http://www.chron.com/news/article/Montana-objects-to-gun-ban-for-medical-pot-2200714.php (on file with the McGeorge Law Review).

40. Steve Green, Nevada Woman Fighting Federal Ban on Medical Pot Users Owning Firearms, VEGAS

INC, Oct. 18, 2011, http://www.vegasinc.com/news/2011/oct/18/nevada-woman/ (on file with the McGeorge Law Review).



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regulation. Perhaps most importantly, it has pursued not just those in the business of manufacturing and distributing marijuana, but also those legitimate businesses doing business with them.41 As the U.S. Attorney for the Eastern District of California stated at a press conference on the indictments: “Our intention is not to prosecute everybody [selling medical marijuana] in the state; our intention is to get people’s attention in order to deter this activity.”42 And the truth is that the Feds need not throw every marijuana dispenser in jail; the slow, steady squeeze the federal government is imposing on the industry now may kill it just as effectively.

2. The Coming Fight over Full Legalization

The confusion and conflict over the legal status of the medical marijuana industry has led many to call for the full legalization of marijuana. A number of states, most recently California through Proposition 19, have considered legalizing marijuana not just for those claiming a medical need for the drug, but for all adults interested in partaking of the drug for either medical or recreational purposes.

However, the federalism concerns regarding full legalization are, if anything, more pronounced than with regard to medical marijuana. In contrast to the uncertainty surrounding the federal government’s views on medical marijuana in the states, the federal government’s opposition to the full legalization of marijuana at the state level has been both consistent and full-throated. Attorney General Holder made the government’s position explicit during the run-up to the California’s vote on Proposition 19 in 2010.43 Responding to a letter from a number of previous DEA administrators asking him to take a stand against the measure, Holder wrote that Proposition 19 would “greatly complicate federal drug enforcement efforts to the detriment of our citizens . . . . Accordingly, we will vigorously enforce the CSA against those individuals and organizations that possess, manufacture, or distribute marijuana for recreational use, even if such activities are permitted under state law.”44 With recreational marijuana

41. Although one statement by a United States Attorney seemed to indicate that a crackdown on media outlets selling advertising to the marijuana industry was the next enforcements step, subsequent statements have backed away from that position. Michael Montgomery, Feds to Targe Radio, Newspapers for Medical Marijuana Ads, CALIFORNIA WATCH, Oct. 12, 2011, http://californiawatch.org/dailyreport/feds-target-radio-newspapers-medical-marijuana-ads-13049 (on file with the McGeorge Law Review).

42. Peter Hecht, Feds Crack Down on California’s Medical Pot Dispenseries, SACRAMENTO BEE, Oct. 8, 2011, http://www.mcclatchydc.com/2011/10/08/126588/feds-crack-down-on-californias.html (on file with the McGeorge Law Review).

43. John Hoeffel, Holder Vows Fight Over Prop 19, L.A. TIMES (Oct. 16, 2010), http://articles. latimes.com/2010/oct/16/local/la-me-marijuana-holder-20101016 (on file with the McGeorge Law Review).

44. Eric H. Holder, Jr., Letter to Former Administrators of the Drug Enforcement Administration, SCRIBD.COM (Oct. 13, 2010), http://www.scribd.com/doc/39415470/Holder-letter-on-California-Pot-Prop-19 (on file with the McGeorge Law Review).



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legalization sure to be on the ballot in Colorado in 2012,45 the push for full legalization is likely only to exasperate the complicated federal–state relationship again.

3. The Power of Congress to Preempt State Marijuana Laws

What, then, is the appropriate division of authority between the state and federal governments with regard to marijuana laws? The fate of the states’ marijuana regulations depends in large part on the preemptive effect that the courts read into federal drug regulations under the CSA. It is generally presumed that the power of Congress to preempt inconsistent (or even consistent)46 state statutes is co-extensive with its power to regulate in a given area. That is, it is generally agreed that any topic that Congress may validly regulate, it may also preempt.47 Furthermore, the Supreme Court has made clear that, in every instance, preemption is a question of legislative intent; when considering the preemptive effect of a piece of legislation regulating a particular topic, a court must determine whether and to what extent Congress intended to preempt state laws on that subject.48

Since the Supreme Court has determined that the regulation of marijuana is a permissible congressional action under the Commerce Clause,49 it follows that Congress may preempt the field of marijuana regulation by prohibiting all state regulation of marijuana, including even those state criminal laws that closely

45. Kristen Wyatt, Colorado Pot Advocates Turn to 2012 Ballot Measure, CBS DENVER (May 15, 2011), http://denver.cbslocal.com/2011/05/15/colorado-pot-advocates-turn-to-2012-ballot-measure/ (on file with the McGeorge Law Review) (“Marijuana advocates racked up big wins in this year’s session of the Colorado Legislature. Now they’re turning their sights to a bigger effort—full legalization on the 2012 ballot.”).

46. It is important to remember that Congress may choose to prohibit even those state laws that do not conflict with federal law. For example Congress may decide that it is better to have a single set of laws in some areas—patent, foreign affairs, etc.—where a single set of rules is deemed as important as a single voice.

47. Robert A. Mikos, On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime, 62 VAND. L. REV. 1421, 1445–46 (2009) (“It is hornbook law that Congress may preempt any state law that obstructs, contradicts, impedes, or conflicts with federal law. Indeed, it is commonly assumed that when Congress possesses the constitutional authority to regulate an activity, it may preempt any state law governing that same activity. Given that there are so few limits on Congress’s substantive powers, there would seemingly be no limit to its preemption power either.”). Professor Mikos argues, however, that Congress’s power is not in fact co-extensive with its regulatory power. The anti-commandeering doctrine, he argues, precludes the federal government from forcing the states either to enforce federal statutes with which they disagree or to pass statutes consistent with federal policy. And this is true as far as it goes, but it only goes so far. The fact that the federal government can neither prevent a state from passing laws inconsistent with the CSA nor force it to repeal any laws on its books says little about the power of Congress to defeat state attempts to legalize some uses of marijuana within its borders. Id. at 1446–47.

48. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (“[O]ur analysis of the scope of the statute's pre-emption is guided by our oft-repeated comment . . . that ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963))); Viva! Int’l Voice for Animals v. Adidas Promotional Retail Operations, Inc., 41 Cal.4th 929, 935 (2007) (“Pre-emption fundamentally is a question of congressional intent . . . .”).

49. Gonzales v. Raich, 545 U.S. 1, 22 (2005).



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track the CSA. However, Congress has explicitly disclaimed an intention to do so; rather, it has limited the preemptive power of the CSA to those situations where there is a “positive conflict” between the state and federal laws such that “the two cannot consistently stand together.”50 Although it might appear obvious that state medical marijuana laws create such a positive conflict with the CSA—those state provisions authorize the manufacture and sale of marijuana for some purposes while federal law prohibits such activities entirely—in other contexts the Supreme Court has read similar preemption language extremely narrowly. For example, in considering virtually identical preemption language in Barnett Bank of Marion County v. Nelson,51 the Supreme Court held that there was not an irreconcilable conflict between a federal statute granting national banks the power to sell insurance and a state statute prohibiting such sales in towns of fewer than 5000 people; the Court held that a bank could comply with both laws simply by choosing not to sell insurance.52 A true irreconcilable conflict, the Court explained, would be one in which a bank was ordered to sell insurance by one statute and simultaneously prohibited from doing so by another.53 Application of this reading of the positive conflict language to marijuana regulation suggests that state medical marijuana laws are not in positive conflict with the CSA; a positive conflict between state and federal law would exist only if the states forced some individuals to manufacture or distribute marijuana while the federal ban remained in place.54

Given this narrow reading of positive conflict, however, courts considering preemption generally consider the additional question of whether the state law stands as an impermissible obstacle to the enforcement of federal law.55 Thus, in Barnett Bank, the Court found that the federal regulation preempted the state ban on selling insurance, even though it had previously found no literal conflict

50. See, e.g., 21 U.S.C.A. § 903 (West Supp. 2011) (“No provision of this subchapter shall be construed as indicating an intent on the part of 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.”).

51. 517 U.S. 25 (1996). 52. Id. at 31. 53. Id. (“The two statutes do not impose directly conflicting duties on national banks—as they would,

for example, if the federal law said, ‘you must sell insurance,’ while the state law said ‘you may not.’”). See also Caleb Nelson, Preemption, 86 VA. L. REV. 225, 260–61 (2000).

54. Interestingly, this is something akin to the argument that the counties made in San Diego v. San Diego NORML, 81 Cal. Rptr.3d 461 (2008): that they were compelled by state law to facilitate marijuana transactions while simultaneously prohibited from doing so by federal law. As will be discussed infra Part V, California state courts found this argument unpersuasive.

55. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518, 529 (2010); see id. at 528 (“Because the ‘physical impossibility’ prong of implied preemption is ‘vanishingly narrow,’” the Court’s decisions typically have turned on the second prong of implied preemption analysis—whether state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (quoting Nelson, supra note 53, at 228)).



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between the state regulation and federal law.56 The Court held that even in the absence of a positive conflict, the state law presented an obstacle to the federal policy of making insurance more broadly available.

Thus, in the CSA context, the preemption question essentially comes down to whether the passage of state medical marijuana provisions presents an obstacle to enforcing the CSA. And clearly, not any obstacle will do; if Congress had meant to preempt any inconsistent state law, it had both the means to do so and the opportunity to make that intent clear. Rather, the question becomes whether state marijuana laws sufficiently impede the CSA such that they should be deemed preempted.

To highlight the difficulty of applying this standard, consider Willis v. Winters, decided in early 2011 by the Supreme Court of Oregon.57 In Willis, applicants for concealed-carry permits sued the sheriffs of two Oregon counties for failing to issue them permits under an Oregon statute directing the sheriff to issue such permits to all qualifying applicants. In response, the sheriffs argued that federal gun laws preempted Oregon’s concealed permit system—that where an applicant met the statutory criteria but admitted to medical marijuana use, the issuance of a permit would conflict with a federal statute forbidding possession of a handgun by “unlawful user[s] . . . of [a controlled] substance.”58

Despite the apparent positive conflict between the state and federal laws in this case—state law required the sheriffs to facilitate weapon possession that violated federal law—the Oregon court held that the “shall issue” statute was not preempted by federal law. Although the court acknowledged that the purpose of the federal law was “keep[ing] firearms away from the persons Congress classified as potentially irresponsible and dangerous,”59 the Court found that the state statute did not operate as an impermissible obstacle to the enforcement of this federal object. Because the federal statute speaks only to possession of weapons, while the state statute speaks to the right to conceal a handgun, the Court reasoned, preemption seemed inappropriate.60 Furthermore, because federal officials remain free to prosecute violators of the federal statute (with the assistance of willing state officials including the very sheriffs involved in this action), the state statute did not impermissibly interfere with the enforcement of federal law.

56. Barnett Bank, 517 U.S. at 37. 57. Willis v. Winters, 253 P.3d 1058 (Or. 2011). 58. 18 U.S.C.A. § 922(g)(3) (West 2000). 59. Willis, 253 P.3d at 1065 (quoting Barrett v. United States, 423 U.S. 212, 218 (1976)). 60. Id. (“[T]he fact remains that the [state] statute is not directly concerned with the possession of

firearms, but with the concealment of firearms in specified locations—on one’s person or in one’s car. Although, in their briefing, the sheriffs treat that distinction as having no practical significance, there is nothing in the federal preemption analysis that would support that kind of broad brush approach.”) (emphasis in original).



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While there is nothing inherently wrong with the Oregon court’s reasoning in this case, it is difficult to argue with a straight face that there is not a conflict between a federal statute prohibiting marijuana users from possessing guns and a state statute requiring local officials to issue concealed carry permits to those same marijuana users.61 Ironically, the same Oregon high court had ruled just the previous year that the state’s medical marijuana provisions were preempted by the CSA, rendering them a nullity.62

Just this tiny glimpse into preemption and the regulation of marijuana reveals how complicated and contested preemption is in this context. But it is important to note that even if state medical marijuana provisions are not preempted by federal law, their reach is still significantly limited by the Supremacy Clause. So, for example, in United States v. Oakland Cannabis Buyer’s Cooperative, the United States Supreme Court held that a defendant charged in federal court with violating the CSA was not permitted to argue to a jury that his conduct complied with state law.63 Because therapeutic use is neither mentioned in the CSA nor imagined by its terms, the Court reasoned, the fact that the defendant might have been complying with state law was simply irrelevant to the federal charges against him.64

Cases like Oakland Cannabis Buyer’s Cooperative make clear the inherent limits of state power in the area of drug regulation. A state may clearly legislate in this area; even if its laws are preempted, a legislature cannot be told either to pass a particular law or to repeal one already on its books.65 For example, Jim Crow laws remained on the books in many southern states for years after it was

61. Nonetheless, the unanimous decision in Willis is not alone. The California Supreme Court found that the state medical marijuana provision was not preempted by the CSA on the basis that Congress intended to preempt only laws that “positively conflicted’ with the express provisions of the CSA, and that laws requiring counties to register medical marijuana users do not expressly conflict with the CSA. County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d 461, 480–81 (2008), cert. denied, 129 S. Ct. 2380 (2009)).

62. See Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518, 529 (2010).

Affirmatively authorizing a use that federal law prohibits stands as an obstacle to the implementation and execution of the full purposes and objectives of the Controlled Substances Act . . . To be sure, state law does not prevent the federal government from enforcing its marijuana laws against medical marijuana users in Oregon if the federal government chooses to do so. But the state law at issue in Michigan Canners did not prevent the federal government from seeking injunctive and other relief to enforce the federal prohibition in that case. Rather, state law stood as an obstacle to the enforcement of federal law in Michigan Canners because state law affirmatively authorized the very conduct that federal law prohibited, as it does in this case.

Id.

63. 532 U.S. 483 (2001). 64. Id. at 493–94. 65. See Mikos, supra note 47, at 1445–46; Printz v. United States, 521 U.S. 898, 925 (1997) (“[T]he

Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs”); New York v. United States, 505 U.S. 144, 188 (1992) (“The Federal Government may not compel the States to enact or administer a federal regulatory program.”).



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clear that they were unenforceable. During this time, such laws had symbolic power, sending a message of contempt to both African-American citizens and the federal government about the South’s continued resistance to integration. The federal courts could invalidate those laws and the President could send troops into those states to see that federal law was being enforced. But federal courts could not order Southern states to remove those laws from their books any more than it could order them to enact laws consistent with federal policy.

If a state wants to do more than announce its displeasure with federal policy, however—if it wants to immunize its citizens from federal prosecution, if it wants to ensure that there are no negative consequences for those taking advantage of a relaxation in a state’s criminal laws—neither the medicalization nor the outright legalization of marijuana can be very effective. The Supremacy Clause guarantees that, state disapproval notwithstanding, the federal government may prohibit that which it wishes to prohibit.66

V. THE STATE–LOCAL JUNCTION

In addition to the ambiguity and conflict between state laws (some of which purport to legalize marijuana) and the federal law (which continues to criminalize it), there is another level of intergovernmental conflict in the area of marijuana regulation and reform—the interplay between state and local governments. Even in those states that have legalized marijuana for medical purposes, there is often a tension between state and municipal governments over whether and to what extent the drug may be regulated at the local level. In Colorado, for example, municipalities and counties are free to enact zoning restrictions on the sale of marijuana—including complete bans—and a number of local bodies have recently chosen to ban it outright.67 Even though the Colorado Constitution prohibits the conviction of those using marijuana for medical purposes, there will likely be many places in the state where marijuana cannot lawfully be manufactured or purchased.

In California, which has delegated much of the regulation of marijuana from the state to the local level, the counties of San Diego and San Bernardino sued the state in 2006 to enjoin it from requiring them to participate in the state-mandated medical marijuana program.68 The counties argued that the CSA

66. The federal government is, of course, a government of limited powers; the Supreme Court has concluded, however, that the regulation of marijuana falls within the Congress’s Commerce Clause powers. See Gonzales v. Raich, 545 U.S. 1 (2005).

67. See, e.g., Election 2010: Local Medical Marijuana Bans, COL. PUBLIC RADIO, available at http://www.cpr.org/article/Election_2010_Local_Medical_Marijuana_Bans (last visited November 18, 2010) (on file with the McGeorge Law Review) (reporting that “[m]ore than 40 cities, towns and counties are asking voters to forbid or otherwise regulate marijuana-related businesses”).

68. San Diego County v. San Diego NORML, 81 Cal. Rptr. 3d 461 (2008), cert. denied 129 S. Ct. 2380 (2009).



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preempted the state law requiring them to facilitate the applications of those seeking to register as marijuana patients under the state’s medicinal marijuana provisions. The counties asked to be excused from their state obligations, arguing that participation in the state regulatory regime would make them complicit in the medical marijuana patients and care-givers’ in violations of the federal law. The counties—like the sheriffs in Willis v. Winters—thus presented a non-trivial argument that they were incapable of complying with both state and federal law; the state obligated them to facilitate the very drug transactions that federal law expressly prohibits them from facilitating.69

Although the counties lost their suit, the San Diego NORML case illustrates that, even in those states that have voted to make medical marijuana legally available, support for such policies is hardly uniform. Just as there are pockets of support and resistance to federal policy among the several states, similarly counties and towns can be expected to support state policy with varying levels of enthusiasm. For example, a number of municipalities in medical marijuana states have embraced the new industry as a boon to tax coffers. Most famously, the City of Oakland, California, has sought to establish itself as the Amsterdam of the United States. Facing fading industry and disappearing tax dollars, the city voted in 2010 to permit large-scale marijuana production, pledging to become the “Silicon Valley of Marijuana.”70

Of course, it is not surprising that different jurisdictions within the same state would have such disparate views of medical marijuana. But it raises disconcerting questions about the ability of a city or county to opt out of a state-wide policy. The traditional understanding of the state–local dynamic is one of master and servant.71 Generally considered the mere creations and instrumentalities of the state, local governments were seen as having essentially no power to contest state authority:

Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to

69. See 18 U.S.C.A. §2(a) (West 1999) (“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”).

70. Evelyn Nieves, Oakland Votes to Permit Large Marijuana Farms, BUSINESSWEEK, (July 21, 2010), http://www.businessweek.com/ap/financialnews/D9H3FE201.htm (on file with the McGeorge Law Review). The failure of Proposition 19 in November 2010 puts the future of this business model very much in doubt. See Ray Sanchez, California’s Proposition 19 Defeated by Voters, ABC NEWS (Nov. 3, 2010), available at http://abcnews.go.com/Politics/proposition-19-results-california-votes-reject-marijuana-measure/story?id=12037727 (on file with the McGeorge Law Review).

71. Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959, 980 (2007) (“The conventional view of local government identity that has developed in the interstices of constitutional law holds that local governments exist as creatures of the state, with questions of local structure, power, and immunity ultimately subject to plenary state control.”).



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acquire, hold, and manage personal and real property. The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. Neither their charters, nor any law conferring governmental powers, or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such property, or exempting them from taxation upon it, constitutes a contract with the state within the meaning of the Federal Constitution. The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.72

This is certainly the view underlying the California court’s decision in San Diego NORML. The court held that, “[a]s a general rule, a local governmental entity ‘charged with the ministerial duty of enforcing a statute . . . generally does not have the authority, in the absence of a judicial determination of unconstitutionality, to refuse to enforce the statute on the basis of the [entity’s] view that it is unconstitutional.’”73

This traditional view has come under criticism in recent years, largely from legal academics.74 These authors argue that the principle of federalism—with its embrace of a variety of approaches and views—should include support for a diversity of opinions within states as well as between them.75 In other words, the

72. Hunter v. City of Pittsburgh, 207 U.S. 161, 178–79 (1907). 73. San Diego NORML, 81 Cal. Rptr. 3d at 472 (quoting Lockyer v. City and County of S.F., 33 Cal. 4th

1055, 1082 (2004)). 74. See Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 COLUM.

L. REV. 1, 1 (1990) (“The insistence on local legal powerlessness reflects a lack of understanding of the scope of local legal authority. Most local governments in this country are far from legally powerless. Many enjoy considerable autonomy over matters of local concern. State legislatures, often criticized for excessive interference in local matters, have frequently conferred significant political, economic and regulatory authority on many localities.”).

75. See, e.g., Richard Briffault, “What About the ‘Ism’?”Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1312 (1994).

[T]he principal themes in the case for federalism-as-decentralization are that ‘the federalist system is a check on abuses of government power;’ it ‘assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society;’ it ‘increases opportunity for citizen involvement in democratic processes;’ it ‘allows for more innovation and experimentation in government;’ and it ‘makes government more responsive by putting the States in competition for a mobile citizenry.’ . . . These values are largely the same as those conventionally ascribed to local



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things that we like about “Our Federalism” apply with equal or perhaps greater power to state-local (and sub-local) federalism.76 If the states are laboratories of ideas, then surely the even more diverse collection of local entities can produce even greater innovation and insights.

This argument for a “localist” parallel to federalism makes a strong case for giving the municipalities the right to contest state policies, including the choice of a state to permit marijuana for medical purposes. However, just as segregation and interposition are the dark side of the argument for state power vis-à-vis the federal government, so localism creates the opportunity for localities to subvert the will of the voters of a particular state. We would look askance, for example, at a municipality that barred churches, bookstores, or abortion clinics outright. If we mean what we say about there being a state right to use marijuana, why should we permit localities to defeat state policy through zoning and regulating marijuana businesses out of their jurisdictions? Just as we worry that the rhetoric of states’ rights will allow states to undermine important federal principles, so we might be concerned that localism will allow municipalities to subvert state-wide policy.

VI. WHERE DO WE GO FROM HERE?

When it comes to the overlapping regulation of marijuana in the United States, the status quo is clearly untenable. Marijuana, perhaps more than any other phenomenon, is treated divergently by the three levels of government. An industry employing thousands, perhaps tens of thousands, of individuals and taking in hundreds of millions of dollars in revenue cannot be built on illegal transactions, each of which could lead to tens of years in a federal prison. Although very few medical marijuana practitioners are in any real danger of prosecution, the possibility looms over each of them. Similarly, if a state can announce that the availability of marijuana to needy citizens is an important government interest, then that policy should not be subject to nullification by every municipality that disagrees with it.

So if the present situation is unsustainable, what does the future hold? Attempting to read the future is always a dangerous activity. And in the case of medical marijuana, as I have argued, analogy seems to fail us; the dissensus over

governments and to local autonomy in the state-local setting. Indeed, it would seem that the characteristics of the states and of federalism that promote these values are even more pronounced at the local level.

Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)). 76. See Heather K. Gerken, The Supreme Court 2009 Term Forward: Federalism All the Way Down,

124 HARV. L. REV. 4 (2010). Heather Gerken has taken this argument a step farther, arguing for pushing federalism “all the way down” to sub-municipal entities. Id. She argues that if decentralization of power and decision-making is one of the important characteristics of “Our Sovereignty,” then we are wrong to stop at the state, or even the local, government level when discussing the various loci of power in American government. Id.



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marijuana is simply unlike any contemporary phenomenon. Perhaps the best example is America’s failed experiment with alcohol prohibition, an example to which marijuana activists repeatedly return. Through the passage of the Eighteenth Amendment, the federal government prohibited an activity that was widely enjoyed and viewed by many as largely benign.77 This disconnect between strong official condemnation and widespread popular acceptance led to the failure of Prohibition and its eventual repeal; Americans were willing to accept neither the lawlessness nor the hypocrisy that Prohibition left in its wake.

There is some evidence that the same situation is afoot today. In many ways, passage of medical marijuana provisions in various states is a rejection of the federal government’s continued assertion that marijuana is a drug that has no acceptable medical use. Furthermore, popular support for marijuana legalization is at its highest point on record.78 Anecdotal evidence indicates that marijuana use is widespread across many strata of American life.79 And yet the federal prohibition on the manufacture and sale of marijuana shows no obvious signs of weakening; if anything, the recent crackdown demonstrates the opposite. While there have been ups and downs in the enforcement patterns of the federal government and attempts to undo the FDA’s classification of marijuana, the fact remains, as it has for the past seventy-five years, that marijuana remains a prohibited substance in the United States.

Perhaps a better analogy than prohibition is, oddly, file-sharing. For years, the recording industry pursued in court those it believed were illegally sharing copyrighted music and videos online. Armed with a federal statute that permitted damages of up to $150,000 per violation, the industry sought to collect not just from entities like Napster and Grokster that facilitated file-sharing, but also from those individual consumers it believed were doing the actual sharing. The industry sued as many as 35,000 people between 2003 and 2008 including, according to the Wall Street Journal, “several single mothers, a dead person, and a 13-year-old girl.”80 The result of this campaign was terrible publicity, relatively

77. U.S. CONST. amend. XVIII (repealed 1933) (banning the “manufacture, sale, or transport of intoxicating liquors . . . within . . . the United States” and its territories.).

78. Frank Newport, Record-High 50% of Americans Favor Legalizing Marijuana Use, GALLUP (October 17, 2011), http://www.gallup.com/poll/150149/record-high-americans-favor-legalizing-marijuana.aspx?version=print (on file with the McGeorge Law Review).

79. See THE DAILY DISH, THE CANNABIS CLOSET: FIRST HAND ACCOUNTS OF THE MARIJUANA

MAINSTREAM (Chris Bodenner, ed., 2010). “For decades, middle-class marijuana use has been America’s best kept secret. That ends with the tales in this collection of pot use testimonials, from top executives to responsible parents, from entrepreneurs to A-students, from unwinding suburbanites to the very sick.” Blurb.com, http://www.blurb.com/bookstore/detail/1832173 (last visited July 21, 2011) (on file with the McGeorge Law Review). In my interviews with those in the industry, they described the variety and diversity of their clients. One subject assured me that it was easier to travel across the country with a bag of marijuana as currency than with a checkbook.

80. Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits, WALL ST. J., Dec. 19, 2008, at B1.



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modest recoveries, and a steady drop in album sales.81 In November of 2008, the industry had had enough, announcing it would stop suing individuals and would seek to enforce its copyrights by other means.82 Facing a yawning gap between the legal definition of copyright infringement and the way the activity was perceived by consumers (particularly young ones),83 the industry was forced to acknowledge that it had lost the war on the ground.

As with file sharing, the disconnect between the law as written and the conduct on the ground may simply have gotten too great to be tenable going forward. Although the federal government continues to assert that marijuana is a drug with no acceptable medical uses, majorities in more and more states are coming to the contrary conclusion. While the federal government continues to prosecute the manufacture and distribution of marijuana as a serious felony, there is evidence that growing numbers of Americans consider marijuana use—whether medicinal or recreational—to be relatively benign conduct. In light of this disconnect, there is reason to believe that the federal government, like the RIAA before it, will simply have to conclude that enough is enough.

81. See RIAA v. the People: Five Years Later, ELECTRONIC FRONTIER FOUNDATION 9–13 (September 2008), available at https://www.eff.org/files/eff-riaa-whitepaper.pdf; McBride & Smith, supra note 80 (on file with the McGeorge Law Review).

82. McBride & Smith, supra note 80. 83. Amanda Lenhart & Mary Madden, Music Downloading, File-Sharing and Copyright, PEW

INTERNET (July 31, 2003), http://www.pewinternet.org/Reports/2003/Music-Downloading-Filesharing-and-Copyright/Data-Memo.aspx (on file with the McGeorge Law Review) (findings from a 2003 survey showed that downloading was more common among adults under thirty than those over thirty).

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Medical Marijuana in Colorado and the Future of … Marijuana in Colorado and the Future of Marijuana Regulation in the United States Sam Kamin* I. I ... Women in bikinis parading