Author Archives: Reed Wagner

But What Does it All Mean Man?: It’s High Time for a Solution, and We’ve Been Staring at it the Whole Time.

I’ve spent the better part of a law school semester explaining how much of a disaster virtually everything related to marijuana reform is shaping up to be. We didn’t have clear terms to discuss the issues. We have lawsuits, state borders, and widespread confusion. Wading through it all has given me quite a few headaches. Based on my last posts, it would seem that the only option for a logical system would be to enact comprehensive federal reform of recreational marijuana.

But what if there’s an easier option? One that might clear this whole mess up? One that might actually happen? I think there is: instead of throwing Band-Aid upon Band-Aid on the problem, let’s fix the system we have now. The best way to do this is to have universal medical marijuana with broad criteria at the state level, coupled with doing everything possible to ensure CARERS passes at the federal level. Remember that CARERS changes federal law to mirror state medical regulations. If a state has a medical scheme, everything covered under that scheme is federally legal.

Other authors on this blog have briefly discussed medical marijuana in California. A recap: it’s broad – almost anyone can get a card, and it’s largely unregulated – the state has no agency that deals with marijuana. California’s system is so broad that it is a stretch to call it medical – a whole industry of doctors has sprouted up to get people cards. As I’ve discussed previously, CARERS would encourage states to shift towards a system like California’s. While there may be some problems for other states if CARERS passes, California is in a prime position to capitalize on it.

In the town of North Bonneville, WA, there is a special kind of dispensary called Cannabis Corner. It’s run by the city. Of all the schemes happening across the United States, this one falls most squarely into the realm of State Participation. State Participation is also the one framework that explicitly invokes federal preemption. Cannabis Corner presents an insurmountable issue – without federal action legalizing recreational marijuana, it’s almost assured that Cannabis Corner will get shut down.

But federal recreational legalization is unlikely. Instead, we have CARERS. While it’s not likely that CARERS will pass, it’s certainly possible that it might.

If instead of rolling its medical marijuana into its recreational, Washington did the opposite, and ended up with an entirely medical scheme that nearly anyone could get a prescription to, what might happen?   If CARERS also passes and Cannabis Corner was a medical establishment, Cannabis Corner would become fully legal on a state and federal level.

This simple act would take one of the most, if not the most, pre-empted regulatory schemes and make it legal, clear, and the state prerogative to enact. There is still the issue of different medical schemes resulting in random and unexpected violations for federal law when crossing a border. This could be a big issue on the East Coast, where you can cross 5 states in a manner of hours. But this post is about California’s future, and that problem has some of the fewest implications in California due to its vast size.

California shouldn’t follow Washington state’s footsteps, folding medical marijuana into recreational. Instead, we should do the opposite. Many say this is a somewhat immoral system because many patients have no real medical need. However, this overbroad nature of this system is also a strength – it legally functions as a medical scheme as far as CARERS is concerned, but is broad enough to function as a recreational system for its users. Understanding why this is a good, and possibly the best, course of action requires looking at the issues implicated in both California’s current medical marijuana scheme and those implicated in a recreational scheme. Once we know what the issues are, we can then explore how CARERS and California medical marijuana would fix them.

The other authors of this blog provide a great sample for what these issues are. First, and frequently foremost: What about the Children. While my colleague Clare McKendry has written extensively on this (and I suggest you read her work), for our purposes two things are important: keeping marijuana out of children’s hands, and not ruining their lives if we do find it in their hands. While access is changed in a medical vs. recreational market, the ability to ruin children’s lives by minor possession is a likely constant in both.

Another big issue implicated by any marijuana reform is the environment. Studies by the California Department of Fish and Wildlife show that the way we are growing marijuana in this quasi-legal medical market is deeply flawed and is destroying the wilderness of Northern California. However, the way marijuana is grown now is not inherently tied to medical marijuana. Instead it’s tied to the crop being federally illegal and needing to be hidden.

These aren’t the only issues – there are a whole host of issues implicated by the fact that marijuana is federally illegal. These include the inability to patent, lack of banking for marijuana industries, and the inability to do federal research. Additionally, there is the issue of flexibility. Right now marijuana law is not static. Instead, it’s ambiguous and subject to significant change on both state and federal level. Any successful reform scheme must pay heed of this and attempt to be future proof.

This isn’t an all-encompassing list. Rather, these are some of the more significant issues relating to marijuana reform. My goal here is to examine some key issues that can be used to demonstrate the positive that could be gained by preserving and improving California’s medical marijuana system, instead of shifting to a recreational system.

With that in mind, let’s take a look at how an improved medical market in California can address all these issues, and what steps would actually be needed to “fix” medical marijuana in California. At the end of this we will be able to see that not only is the medical system a possible way forward, but that fixing it wouldn’t take much time, political capital, or money.

Starting with the kids, as I mentioned, there are two implications: access and destroying kids lives. Let’s talk about access. I have yet to hear a single person say anything to the effect of “Kids should have easy access to marijuana.” I’m not a betting person, but I would put money on that remaining true. Whatever happens, we need to ensure that kids can’t get marijuana easily.

In terms of kids’ lives being ruined, medical vs. recreational doesn’t change the equation much. It is possible that with changing the laws for either, penalties for youth will be reduced. That’s probably a good idea, but its independent from a medical vs. recreational debate.

Compare the access in a recreational vs. medical market. In a recreational market, buyers would go to the store and likely show their ID to be able to buy marijuana. It would be the same as going to 7-11 to buy beer or cigarettes. Like going to 7-11 for beer, kids will use fake IDs, pay someone else to buy for them, etc. While the staff at the local liquor store might be suspect, there is only so much they can do to prevent kids from getting their product. Enforcing these rules also requires outside money – police conducting liquor store stings isn’t cheap.

In a medical market, someone could still give a kid some of his or her marijuana, but if you need a verifiable prescription with your name on it to purchase marijuana at a dispensary, then you logically decrease the possibility of children being able to sneak a purchase. Enforcement here is easier as well – much of the regulation is baked into the process. Doctors must give prescriptions, and in the cost of the payment for the doctor’s visit is the price needed to cover the independent verification system. Furthermore, we already have this system.

Similarly, the environment is an issue that is constant across both recreational and medical markets. If we were growing recreational marijuana in the same way we grow medical marijuana, it would be just as unsustainable and harmful to the environment. One theory about why marijuana is grown in the mountains is that its quasi-legal nature requires it to be grown far from the prying eyes of government. This theory makes sense at a logical level, and while there isn’t good data to support (or deny) it, I think it is safe to say marijuana’s federal illegality is a significant factor in determining where it’s grown. This is equivalent to people putting stills up in the Appalachian mountains during alcohol prohibition.

So what changes with medical? Medical has a chance to become federally legal. Support for CARERS is growing, with even the president signing on. When you remove the illegality, marijuana is a crop – just like corn or almonds. When it is fully legal, a state can take steps to ensure that it is grown properly without worrying about the federal government stepping in and undoing all their work.

For example, the Mendocino County Sheriff had a program to tag legal grows. Growers who were following all the rules would get zip ties with serial numbers on each of their plants, demonstrating that the plant was legal. However, the DEA decided the sheriff couldn’t do that, and raided many of the zip tied farms. In a federally legal medical market, the state would have the freedom to enact programs like this. A medical market lets the state treat marijuana as any other crop, drag it out of the mountains and ensure that it isn’t killing salmon, dogs, and even bears.

Recreational legal marijuana, on the other hand, would still have federal issues. Even post-CARERS, the DEA could still raid fields, and prevent the state from acting to ensure that best agricultural practices are followed. This would require the state to figure out how to regulate the growing of a federally illegal substance. On the other hand, in a federally legal medical market, marijuana grows can be folded into the existing agriculture regulatory market. Just like almonds.

While the environment and the children are two of the biggest issues, there are a plethora of things that are problematic now, but would become nonissues in a better federally legal medical market.

Colorado is having issues ensuring safe banking for its recreational marijuana market. Marijuana industry players are keeping massive sums of cash on hand, and it’s creating a target for robberies. The challenge to patent strains is a huge issue. Because federal research is illegal under the CSA, figuring out how to do anything with evidence-based practices next to impossible.

However, remember that CARERS says that any act legal in the state under its medical marijuana scheme is federally legal in that state. While we don’t know how it would play out, it seems as if this would solve all three of these issues. Patents of medical strains would be just like any other medicine. Research could be conducted with federal grants. Again, we don’t know what limits would be imposed on a state by courts, but it seems like CARERS with our current scheme would put California in a cleaner, easier to regulate system than Colorado.

But that’s not the best part. What if California decides it wants to change something about its medical marijuana market? CARERS lets California do that in a way where it doesn’t have to worry about the preemption implications. Because CARERS is concerned with the text of the state law, if California changes its state law, the federal law effectively changes to match it. This would allow California the freedom to regulate as it sees fit.

Contrast this to Colorado. If Colorado decides it wants to change its recreational law, even under CARERS, it will continue to violate federal law. That means the DEA could come in at any moment and try and shut the whole thing down. However, with this risk comes reward. Colorado is getting a significant amount of tax from its recreational marijuana. In a fully medical market, California will not get the same amount of tax revenue. But, that tax revenue might be a false hope: Colorado’s marijuana price has fallen, with experts expecting the price to continue to fall further. Without that revenue, the biggest boom from a recreational market disappears, but all the risk remains.

In conclusion, the federal winds are blowing in a way that suggests federal medical marijuana might become legal. Furthermore, there is no indication that recreational marijuana will become federally legal.   California is in a prime position to do next to nothing, and reap all the benefits of a federal act allowing states to legalize medical marijuana. Unlike Colorado, California wouldn’t need to change its laws – it could instantly treat marijuana as any other prescription and crop. So for the kids, the salmon, and the bears, we should think about if recreational is really the best way to go. It looks like a broad medical program might be a more sustainable, cleaner, and easier to regulate system.

But What Does it All Mean Man?: It’s not Easy Being Non-green – What can a State do to Keep the Green Tide From Its Neighbors at Bay?

Last time, we talked about how Nebraska and Oklahoma (or the NO states) were suing the State of Colorado in an effort to have the federal government help them keep the green tide from Colorado at bay. We also talked about CARERS, which, if Colorado switched to an expansive medical market, would make the NO lawsuit moot.

This time, we will engage in a thought experiment.  For this post, assume that CARERS has passed and medical marijuana is federally legal in any state with any medical-regulation scheme.  Remember, CARERS is only concerned with medical marijuana, not recreational.  What remedies would the NO states have left?  Is this what the future border crossing on I-76 between Colorado and Nebraska would look like? Would a US-Mexico style crossing between states even be legal?

sanyisidro

San Yisidro Port of Entry, Photo Credit Phil Konstantin, Wikipedia

To help, lets consider some fantastical states. We will start with a state based on the subject of this blog – New California.  New California, like California, has very broad medical regulations where almost anyone can get a medical marijuana card.  Recreational use of marijuana is not legal in New California.

Next we have New Georgia. Like New California, New Georgia does not have legal recreational marijuana.  However, it has a very limited legal medical marijuana regulatory scheme.  In New Georgia, only patients with serious medical conditions like Parkinson’s and cancer can get access to CBD oils.

New Colorado has both medicinal and recreational marijuana.  Its medical scheme is nowhere near as broad as New California’s, but many people with a variety of medical conditions can still get a medical marijuana card.  Everyone in New Colorado can get recreational marijuana.

New Washington decided to skip out on medical marijuana and legalized only recreational marijuana. In its desire to quickly join the green wave sweeping the states, New Washington decided to totally decriminalize any production, sale, or possession of marijuana. It has no regulations of any kind.

Finally, we have New Nebraska, a state opposed to any marijuana reform.  New Nebraska wants to keep all marijuana illegal and is rather annoyed about people bringing marijuana from the other four states across its borders.

These five states are located in such a way that each state shares a land border with New California. To further simplify things, each state has reciprocity scheme where if something is legal in two states, both states honor the other state’s authorization.  For example, if a New Georgia medical marijuana client went to New California, they would be able to purchase medical marijuana and vice-versa.

Given the way CARERS is currently structured, the federal government will treat any state with a medical marijuana regulation as having some degree of exemption from federal prohibition (when it comes to medical marijuana).   For our hypothetical, these states are New California, New Georgia, and New Colorado.  In each of these states, CARERS makes many marijuana products federally legal.  In my last article, I touched briefly on the strange situation this might create in a state like Georgia.  Now we are going to go more in-depth and look at the different relationships created amongst these neighboring states.

There are four key relationships: Medically Regulated to Medically Regulated, Medically Regulated to Medically & Recreationally Regulated, Medically Regulated to Recreationally Regulated, and Medically Regulated to Prohibited.

Lets start with Medically Regulated to Medically Regulated.  Here, we will look exclusively at New California and New Georgia.   Remember that New Georgia is limited to CBD Oil, while New California will give a card to practically anyone who wants one.  CARERS states “(b) Compliance With State Law.—Notwithstanding any other provision of law, the provisions of this title relating to marihuana shall not apply to any person acting in compliance with State law relating to the production, possession, distribution, dispensation, administration, laboratory testing, or delivery of medical marihuana.”

Both New California and New Georgia will receive some benefit from this, but to varying degrees.  In New California, where anything goes, pretty much everything will be federally legal.  This results in a clear rule without many places for hiccups in enforcement – the feds will have no authority.  New Georgia will have marijuana legalized to the extent that the state has, which creates major enforcement issues. While possession for use might be simple, consider production.  If New Georgia has a complex regulatory framework for the process of CBD oil production, simply violating one scintilla of state law will result in violating the CARERS exemption. This could result in federal criminal charges for acts that might be mere license violations at the state level.

Let’s turn to the border between New California and New Georgia.  CARERS suggests that so long as you follow state rules, you are exempt from federal marijuana law.  This leads to the question – can you then take marijuana that is legal in both states across the state border?  The answer seems to be yes.  At no point during the drive from New California to New Georgia does the marijuana become illegal.

Except it’s not that simple.  While CBD oils would be federally legal to transport across the border, a cloned plant wouldn’t be. Will state and federal agencies at the border have to police for plants, but not oil?  That sounds like a mess.

Unfortunately, New California to New Georgia isn’t the messiest border.  That title belongs to New California and New Colorado, or Medically Regulated to Medically & Recreationally Regulated.  In addition to having all the complexities regarding the nuanced differences in their medical schemes, New Colorado also has legalized recreational marijuana.  The exact same product bought for medical purposes in New California could be federally illegal if bought for recreational purposes in New Colorado.

This would be impossible to police.  Even in a world without the Fourth Amendment – one where police searched each car on a state border—it would be impossible for the police to distinguish what was bought for a recreational purpose and what was bought for a medical purpose.  In fact, a New California resident could buy their medical marijuana of choice in New California, drive it to New Colorado and have it be totally legal.  However, when coming back, if they purchased the exact same product at a recreational store in New Colorado, the New California resident would violate federal law.

I want to take a moment to appreciate the implications of marijuana being federally legal in a state with an international border.  This may be even more complex. This is a fascinating topic, is governed by treaties, and warrants further research and discussion.  We won’t be doing that in this post.

Our last two borders are the simplest.  Despite appearing on opposite spectrums of liberalization of marijuana policy, CARERS treats New Washington the same as New Nebraska.  As neither state has medical regulation, CARERS doesn’t change much.  Any New California medical marijuana will become federally illegal the second it crosses into New Nebraska or New Washington.  New Washington recreational marijuana would always be illegal, and so would be federally illegal in both states.

Finally, let’s consider our prohibitionist holdout state, New Nebraska.  While New California and New Colorado might decide not to enforce the laws broken at their borders by the nuanced differences in their laws, New Nebraska wants none of the green tide spilling into its border.  So what can New Nebraska do to keep it at bay?

There are some legal principles at work here: state borders are different than international borders, and Article 1 § 8 of the U.S. Constitution states that commerce between states is a federal matter. A state can’t decide to outlaw a widely used type of truck on its roads in an effort discourage to truckers from driving through the state. A state’s power to police its border is not limitless – if the state’s actions are found to be too large of a burden on interstate commerce, they can be overturned.

Let’s consider what possible options New Nebraska might have to keep illegal marijuana from flowing across their border with New California.  A drastic (and illegal) solution would be to close the border.  Another solution would be to create a regulatory scheme for medical marijuana, but if that were a viable option, New Nebraska would not be concerned with the green tide.

Realistic options involve some kind of increased border presence.  This will come at great cost to the state, but there is some precedent for it.  California has established a series of border stations to keep agricultural pests and diseases out of the state. This is what California’s system currently looks like:

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Current California State Run Border Protection Stations. CA Dept. Food & Ag.

Just as California has border stations along its highway connections with other states, New Nebraska could create stations like this at its border.

This plan raises two questions: Who would pay for these stations and does New Nebraska have any authority to search for marijuana at its border?

At first, it’s almost certain that New Nebraska would have to pay for increased border security.   However, they could ask the federal government for reimbursement, or sue New California or New Colorado for money damages equal to the cost of increased enforcement.  There is no precedent for this, because there is no precedent for something becoming federally illegal simply by crossing a border.  This is distinct from something like a radar detector – which is a legal article of interstate commerce, but illegal in some states.  At no point does a radar detector become federally illegal by crossing a border.

The closest analogue is environmental lawsuits between states.  Back in 1906, Missouri sued Illinois for polluting tributaries of the Mississippi River and contaminating its drinking water. The court noted that congress had not prohibited Illinois’s actions – making the distinction between New California’s 100% legal scheme and New Washington’s 100% illegal scheme nonexistent.  While this lawsuit was dismissed because Missouri was dumping similar pollutants into the river as Illinois, it outlines a possible format that a state could seek to apply for the cost of setting up increased enforcement to keep the green tide at bay. A plaintiff would need to show that the harm was stemming from the defendant and the increased damage to the plaintiff state was caused by the defendant’s action.

But would these enforcement stations have any legal ground to search everyone’s cars?  Surely California’s border stations can ask you if you are transporting produce into the state, but asking is very different than searching. The Fourth Amendment prohibits unreasonable searches and seizures without warrant or probable cause. In Indianapolis v. Edmonds, the US Supreme Court found that it violated the Fourth Amendment for the City of Indianapolis to conduct drug interdiction checkpoints.  The bottom line seems to be: police can’t search without probable cause.

However, there is a legal principle that our international borders are different in regard to the Fourth Amendment.  In effect, the Fourth Amendment is weaker in San Diego than in Denver. Could this principle apply to a state border? The fact is, we don’t know.

There’s another wrinkle in this: the odor of marijuana is frequently used as probable cause for a search. This might change in on the New California side of the border, but not on the New Nebraska side.  New Nebraska could probably pull over everyone committing any vehicle code violation at the border and take a deep breath as they approached the driver’s side window, but not much more.  It’s hard to imagine that this would be effective.

Where does that leave us? Marijuana reform is currently a mess.  CARERS would do little to alleviate that, but would substantially change the landscape.  A state in a post-CARERS world might have no effective challenge to stop the green tide emanating from its neighboring states.  Certainty, this is not sustainable – either all the states will have to accept marijuana within their borders, or something different will have to be done federally.  However, even if all the states enact a medical reform, unless each reform is identical, marijuana will still drift into grey areas of legality, especially on state borders. Next time, we will talk about how that might work, and look specifically at the future of medical marijuana in California.

 

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…

But What Does it all Mean, Man?: The Difference Between Decriminalization, Legalization, Regulation and why it Matters.

When discussing marijuana reform, we often hear terms like decriminalization, legalization, and regulation. These terms have taken on a multitude of definitions and many of us have no idea what the words we are using mean. Frequently they are used synonymously. This is a potentially crippling problem, and its consequences are widespread. As stated in my introduction, I’m exploring a fundamental flaw in discussing marijuana reform. This first substantive post deals with two facets of the problem: demonstrating the problem and suggesting a definitional framework to fix it. The problem is this: it is very easy to fall into the trap of using decriminalization, legalization, and regulation synonymously. This is widespread and many of us are guilty of using these terms interchangeably.

A quick note, for this series, I am advocating the use of the word reform in its most neutral manner – changing the laws regarding marijuana. There are a million ways to do this, as best exemplified by Transform’s publication “How to Regulate Cannabis: A Practical Guide.” Transform’s guide will be used in later blog posts to place current reform schemes on the spectrum of state action created by the definitional framework.

In his article “Preemption under the Controlled Substances Act”, Robert Mikos puts forward a clear and easily understandable framework for discussing federal preemption. However, when he turns to marijuana reform, Mikos becomes guilty of perpetuating this problem. He is by no means the worst offender, but his article is extremely helpful as it demonstrates not simply the problem, but why it is important. Before we go on a crusade against anyone for his/her word choice, I want to make it clear that there is no single way to regulate marijuana – there are millions. I also want to emphasize that each of these possible reforms is distinct from one another and should no longer be used synonymously.

Mikos looks at marijuana reform under the lens of federal preemption of state laws.   Federal preemption is triggered when both the federal and state governments have laws on the same issue. Generally speaking, federal law is the supreme law of the land, and Congress can therefore void state laws if it so chooses. Those last four words are key – and as Mikos explains, any preemption question requires asking what Congress intended.

In looking at marijuana reform through the federal preemption lens, there are three different brands of preemption that must be accounted for: field preemption, direct, and obstacle preemption.

Given our current state of congressional gridlock, it’s hard to imagine what 535 members intended by voting on a single bill. Fortunately, sometimes Congress makes it easy for us. This introduces our first brand of preemption: field preemption. Field preemption occurs when Congress has explicitly stated that it intends of occupy the entire field of legislation on a particular issue. A state is therefore unable to make valid law on the issue. However, the Controlled Substance Act specifically states that it does not occupy the field, and Mikos argues that field preemption is not relevant to marijuana reform.

However, the other two brands of preemption are implicated by marijuana reform. Mikos calls these direct and obstacle preemption. A direct preemption occurs where it is physically impossible to follow both state and federal law. Obstacle preemption is where a state law gets in the way of accomplishing the full purpose of Congress. Mikos also introduces a counter concept to preemption: commandeering. Commandeering prevents the federal government from forcing a state to make a law.

While Mikos successfully defines preemption, his argument begins to run afoul of the terms specific to marijuana when he casually uses terms like decriminalization, legalization, and regulation.   Mikos attempts to connect the brands of preemption and commandeering to different styles of reform schemes. It is easy to see how this can be useful – if one type of reform invokes a specific kind of preemption, policy makers can take steps to minimize their exposure to federal preemption.

In failing to define decriminalization, legalization, and regulation, Mikos has run afoul of one of the biggest problems facing marijuana reform: we have no idea what these words mean. When discussing commandeering, Mikos defines legalization as removing state laws and regulation as creating state laws. However, he uses the term regulation throughout to refer to a wide range of possible reform schemes. Mikos also refers to states that have legalized marijuana and elaborates by discussing decriminalization. What started out as a brilliant way of categorizing various reform schemes in terms of their federal consequences is muddled by a lack of clarity as to what those reform schemes are.

To remedy this, and prevent further confusion, I am proposing a linguistic shift in terminology when discussing marijuana reform. First, the words legalization and regulation have become broad beyond saving. They can continue to be used in that broad sense (like reform), but when discussing the specifics of a reform scheme, they should not be used in the same manner. Instead, I propose a spectrum with three points on it. Each represents a level of state action – many reform schemes may be at one place on the spectrum as to an issue like taxation, but on another in regard to criminal penalties. As such, these are extremes – it is doubtful any reform scheme will be fully contained by a single term.

Total Decriminalization: A reform scheme in which a state has removed any law regarding marijuana from its books. Growing, possessing, and selling marijuana are not forbidden by state law, but they are also not regulated or controlled by any state agency.   Total Decriminalization falls squarely within the commandeering principle and involves no action from the federal government. This is distinct from the somewhat loose use of the word decriminalization to describe a state that has significantly reduced penalties for marijuana possession. Total Decriminalization has no preemption implications – as commandeering prevents the Federal Government from forcing a state to pass a law, the federal government cannot prevent a state from repealing a law.

State Regulation: A reform scheme where the state has laws allowing marijuana use, growth, and sales, and regulates third parties. The state authorizes individuals to grow, sell, and use subject to state regulation. This most squarely falls inline with Mikos’ definition of obstacle preemption – arguably the easiest form of preemption for a state to fight. In a State Regulation reform scheme, a state would only have to show that its reform did not get in the way of the intent of the CSA.

State Participation: A reform scheme where the state has a direct role in production and sale of marijuana. Instead of private parties growing marijuana subject to the state regulations, the farm would be owned by the state and the farmers would be state employees. Likewise, all sales would be done by government agencies. State participation closely follows direct preemption – something much more difficult for a state to fight than obstacle preemption.

By shifting to using these three terms Mikos’ preemption argument becomes clearer, and abundantly more useful. As we will see over the remainder of this blog series, the linguistic efficiencies granted by this framework are significant and resolve many simple issues to allow time to be focused on more complex policy choices.

But What Does it All Mean, Man…? An Introduction  

I’ll be writing a series of blog posts that attempt to clear up some commonly used terms about marijuana reform that we take for granted. When discussing decriminalization, legalization, and regulation, it is easy to slip into using these terms interchangeably, but there are important distinctions. These words aren’t just commonly used; they are also material to explaining the legal issues of a reform scheme. In that light, I’ll put forward the following framework for talking about different reform schemes: decriminalization – where the state has no law about marijuana, state regulation – where the state has laws enabling third parties to participate in the marijuana market, and state participation – where the state itself is responsibly for growing and distributing marijuana. I will then explain why having defined terms is vital to enacting intelligent reform, and show how the framework interacts with other laws (like federal preemption). I am also in the final stages of authoring an article that explores marijuana reform’s potential impacts on police resources and prison space in California.

I’m Reed Wagner, a third year student at Santa Clara Law. In my time at Santa Clara Law School, I’ve mostly focused on criminal justice issues. I currently work at the Santa Cruz Public Defender’s office and I volunteer at the Northern California Innocence Project. I previously interned at the Stanislaus County Public Defender. My law schoolwork and upbringing in Berkeley, California, has deeply influenced my desire to see evidence-driven change enacted. Too frequently Californians shoot from the hip when legislating at the ballot box, something that can result in disastrous outcomes for equality and justice. While I am a proponent of marijuana legalization in California, the how of legalization is more important to me than the if. Without understanding policy issues, it is impossible to make the legislative choices needed to enact an intelligent reform. Stay tuned and subscribe for more.