But What does it all Mean Man?: CARERS and Interstate Lawsuits, a Messy Patchwork of Quasi Solutions

In my last post, I created and described a framework for discussing marijuana reform that I claimed could solve many of our problems. This week I’m going to tell you how that framework could become useless in an instant. Enter the Compassionate Access, Research Expansion, and Respect States (CARERS) Act. While the CARERS act is not law yet, or even close to law (it only has a few sponsors and hasn’t been put to a vote yet) it might dispense with the current lawsuit by Nebraska and Oklahoma (the “NO” states) alleging that Colorado is violating federal law by regulating adult-use marijuana. At the same time as it solves this problem, the CARERS Act might create a host of other problems for the NO states in particular and marijuana regulation in general.

As most readers know, in 2012 Colorado voters passed Amendment 64, legalizing recreational marijuana. The Attorney Generals of NO allege that the legalization of recreational marijuana in Colorado has created adverse consequences for their state. The lawsuit asks the federal government to step in and prevent Colorado from regulating marijuana. In effect, the NO states are saying no to Colorado’s legalization. Yet, it seems unlikely that NO are simply suing Colorado to save the mountain state from itself. In its reply, Colorado explains that the NO states are simply trying to reach across their border to change Colorado law.

While it hasn’t passed into law, if it were passed, the CARERS act would render the lawsuit moot. It would reclassify medical marijuana as Schedule 2, allow VA doctors to recommend medical marijuana, and, most significantly, it would remove federal prohibition in states which have any regulatory scheme about medical marijuana. This is weirdly analogous to the Perry/Windsor issue on gay marriage, when the Supreme Court held that the federal government must recognize gay marriage but made no requirements on the states to do so.

As it stands currently however, the CARERS Act has no requirement for the quality or comprehensiveness of regulation. A state like California, with no statewide regulation, would be no different than Colorado, which has significant regulation, at least in regard to medical marijuana. CARERS may be one of the only things the federal government could do that would simultaneously remove prohibition and worsen the tangled patchwork of regulation states are creating.

Consider a baggie of medical marijuana from Colorado. It would be legal to possess in Colorado, both according to state and federal law.However, the same baggie would be federally illegal if it simply moved over the border to Nebraska or Oklahoma (assuming they don’t enact a legalization scheme of their own). In this situation, Colorado would be incapable of violating any federal law. Medical marijuana would be legal the second it enters Colorado.

But what would happen if the baggie were recreational instead? CARERS only contemplates medical marijuana, not recreational. This obviously implicates enforcement issues – it may be impossible to distinguish between medical marijuana and recreational marijuana in the field.

It’s likely that NO would still have an argument if they were able to demonstrate that recreational marijuana from Colorado was crossing their border. What about if Colorado followed California’s model of making medical marijuana regulations extremely lax? This seems to be a likely result – if a federal system comes into place that allows medical marijuana but doesn’t define what it is, many states may want to shift to an expansive medical framework like California’s current medical marijuana scheme. If Colorado were to adopt California’s model post-CARERS, NO would not be able to say that Colorado’s laws would be preempted.

Let’s just take a moment to consider the implication of CARERS: It favors a completely unregulated medical market where anyone can get a club card over a highly regulated recreational system.

But it gets even messier than that. Remember that CARERS makes medical marijuana federally legal if there is any medical regulation. The text of the bill doesn’t say anything about the form of marijuana legalized, just that state rules need to be followed. While a court could (and almost certainly would) limit CARERS, it creates a whole host of  other problems. Let’s look at what would happen in Georgia, which just legalized only medical CBD oil. Again, this is speculative, but the way the CARERS statute reads suggests that in Georgia, marijuana would be de-scheduled to the extent that it complies with state law, but beyond that still federally illegal. If Georgia is specific about its regulation for producing CBD oil, a misstep in a lab could be a minor license violation at the state level, but a felony at the federal level. This is for lack of a better word, weird.

At the same time as creating these messy situations, CARERS would make it harder to categorize and discuss marijuana reform. The wide reach of CARERS would make the framework for analyzing different reform schemes unhelpful. If a state has the explicit permission to regulate medical marijuana how they see fit, any method of regulation will suffice. This suggests that the federal government would approve of both State Regulation and State Participation, as I defined them in my earlier post.

However, it leaves the problem of defining “regulation” and “medical.” Would a state with Total Decriminalization be one where marijuana is federally legal? The way the word “regulation” is used in CARERS is ambiguous, and could go either way.

A likely post-CARERS marijuana reform scheme could be medical with broad entry requirements, and with no limitation on the level of state involvement. If, for federal purposes, all forms of marijuana regulation are functionally the same, then the clear lines drawn by my framework would cease to provide something useful.

While neither the lawsuit nor CARERS has come to fruition, the world that they would create is perplexing and uncertain, especially along the border of green and non-green states. If preemption is not a successful cause of action, then what can a state do to limit the influx of marijuana from non-green states? I’ll cover that in my next post. Stay tuned…

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