The Clash Between Federal Drug Law and California's "Medical
Marijuana" Law: How Two Interesting Recent Events Illustrate Their
By VIKRAM DAVID AMAR
Friday, Nov. 09, 2007
Two news items during the past couple of weeks in California highlight
the complicated legal and political tangle that is American federalism
- the relationship between federal and state governments -- today.
Both incidents involve the interplay between, on one hand,
California's (now decade-old) decision to decriminalize marijuana use
for medicinal purposes, and, on the other hand, the continuing
illegality under federal law of all marijuana cultivation, possession,
distribution and use, for any purpose.
The two events present radically different facts: One involves an
alleged criminal conspiracy that is far-flung and linked to violence,
whereas the other involves a civil lawsuit brought by a seemingly
productive employee against his employer. Yet the two episodes, taken
separately and together, nicely illustrate key aspects of the ongoing
tug-of-war between so-called "states' rights" and federal supremacy.
The First Episode: The Criminal Charges Against Two Entrepreneurial
On October 30, federal drug agents executed numerous search warrants
against Winslow and Abraham Norton, two young brothers (Winslow is 26
and Abraham 23) who are alleged to have sold an estimated $49 million
of marijuana at various locations in the Bay Area during the past
three years. The Nortons' medical marijuana dispensary was registered
and given a permit to operate under the regime prompted by
California's Compassionate Use Act ("the Act"), a 1996 initiative
measure adopted statewide by voters that decriminalizes, under state
law, marijuana cultivation, distribution, and use in those instances
where a physician has given a written or oral recommendation or
approval to a patient to use marijuana.
Under the Act and subsequent implementing legislation, an Alameda
County Sheriff's Deputy regularly visited the Nortons' facilities to
ensure that only those persons with physician recommendations were
being given the drug.
According to press accounts, the Nortons paid state and federal income
taxes on (at least some) of their income, rewarded their workers well
and gave them benefits, and even contributed charitably to the community.
Nonetheless, the Nortons appear to have been flagrantly violating the
federal Controlled Substances Act, which designates marijuana as an
illegal contraband substance whose manufacture, distribution and use
is prohibited in virtually all instances.
The Constitutional Reason Federal Law Trumps California Law Here
How, some people in California are asking, can the feds impose their
will on the people of California, who have chosen a different answer
than has Congress to the controversial and vexing question of whether
marijuana use should ever be allowed?
The answer is short and sweet: The Supremacy Clause of the U.S.
Constitution makes validly-enacted federal statutes the "Supreme" law
of the land, along with the U.S. Constitution itself. So, as long as
the Controlled Substances Act is within Congress' constitutional
powers to enact (as the Supreme Court held it was a few years ago, in
Gonzales v. Raich), Californians can have no state-conferred immunity
to be free from federal restraints and prosecution.
Readers who don't easily see why federal statutes ought to be supreme
over - and not constrained by - inconsistent state laws may want to
consider the example of Southern resistance to federal civil rights
laws in the 1950s and 1960s. There too, proponents of local authority
argued that the national legislative policy adopted by Congress in
Washington DC - in that instance, that racial discrimination in
employment and housing should be barred - should not be imposed on
states and localities that had reached a different resolution as to
how they believed the races ought to interact. In that setting,
federal law won out. So too here.
Consider another example in which federal supremacy seems quite
intuitive and attractive. Suppose Congress outlawed use of a
particular environmental pollutant that many considered dangerous. If
a majority of voters in any one state nonetheless wanted to allow
persons within the state to use that pollutant, then those voters
could decriminalize use of the pollutant under state law, but could
not prevent the federal government from punishing those within the
state who emit the dangerous chemical.
Is Federal Supremacy Regarding Civil Rights and Pollution Meaningfully
Different from Federal Supremacy Regarding Marijuana?
One way to attempt to distinguish the civil rights and pollution
examples from example taken from the marijuana setting would be to
point out that unless there is federal enforcement in the civil rights
and environmental law areas, innocent victims who happen to live in
the permissive state may suffer. In other words, there are spillover
effects from a state's decision to go its own way concerning racial
discrimination and pollution - effects that may harm individuals both
in that state and in other states.
But the same can arguably be said for marijuana. If, for example,
marijuana use does create a risk that some persons may drive unsafely
or do other unwise things while under the influence, then the effects
of this behavior are not limited to the marijuana users themselves,
nor are the effects even limited to Californians.
California's medical marijuana scheme undoubtedly affects the
marijuana market in bordering states, and creates spillover effects in
those other states. Drivers cross state lines, as does the violence
that tends to follow business enterprises that are illegal in some
places. It does not seem coincidental that the Norton brothers'
operations involved many young, seemingly healthy customers who
nonetheless have physician recommendations. Nor does it seem
coincidental that the Nortons have been plagued by armed robberies;
news reports suggest that, at least four times, armed assailants have
either killed, shot or robbed the Nortons themselves or their
employees or customers. This kind of violence rarely can be confined
to one small location, or even one state.
Indeed, in upholding Congress' power to regulate all marijuana,
including medicinal marijuana, the Supreme Court in Raich noted that
the federal government cannot count on California to keep its
medicinal marijuana - or the effects of this marijuana - within state
The Second Event: The California Supreme Court Hears Ross v.
Ragingwire Telecommunications Inc.
The second illustration that helps frame federalism issues in this
area is the Ross v. Ragingwire case, in which the California Supreme
Court heard oral arguments this past Tuesday. Ross is a U.S. Air Force
veteran who sustained disabling injuries as a result of his military
service. Since 1999, he has been taking marijuana on the advice of his
physician to alleviate back pain. He was hired by the Sacramento
technology company Ragingwire, which, pursuant to company policy,
required him to submit to a drug test.
Ross complied, and was very open about his medicinal use of marijuana.
But when his drug tests came back and they were (predictably) positive
for marijuana, he was terminated. Ross then brought an action under
the California Fair Employment and Housing Act (FEHA). FEHA, a state
law similar to the Americans With Disabilities Act, requires employers
in California to accommodate the physical disabilities of an employee
or would-be employee so long as the employee can, with accommodation,
perform the essential functions of the job. Ross argued that since he
was disabled but could, through the use of medical marijuana, perform
the essential functions of his job, Ragingwire violated his state law
rights in terminating him on account of his marijuana use.
The lower courts ruled in favor of the employer, reasoning that FEHA
does not generally bar employers from using drug tests or from
requiring that all employees refrain from illegal drugs. Since
marijuana is an illegal drug under federal law even though its use by
Mr. Ross was not criminal under California law, the lower courts
reasoned, employers can terminate marijuana users.
How Is the California Supreme Court Likely to Decide the Ross Case?
Now, the California Supreme Court must decide how to interpret the
FEHA in light of this complicated interaction with the federal
Controlled Substances Act.
A few things seem clear. One is that federal law could, if Congress
wanted it to, explicitly empower employers to discriminate against
marijuana users, even if marijuana use is decriminalized under state
law. In legal parlance, Congress could, if it wanted to, "preempt"
state FEHA claims based on Ross' theory.
But nothing in the federal Controlled Substances Act or elsewhere in
federal law seems to say or do that. In other words, there is no
federal preemption or (as in the Norton case) federal enforcement of
federal law. Instead, there is only the question of whether FEHA
claims, as a matter of California state law, can be based on failure
to accommodate medicinal marijuana users, given that marijuana is a
In deciding what FEHA means, or should mean, the California Supreme
Court needs to balance a number of factors. First, if Ross prevails,
then at a minimum, California employers who are constrained to allow
medicinal marijuana should not be held liable under state tort claims
for any injuries traceable to the marijuana use. (The state Supreme
Court should have the power to confer this tort immunity, since it
fashions California tort law. In contrast, the California Justices
cannot immunize employers from liability under federal law, but hiring
medicinal marijuana users wouldn't seem obviously to violate any
Second, even if the specter of state tort liability is removed from
employers, it is still not clear whether they should be forced to hire
persons who are breaking federal law. Should an employer be forced to
bear the (small but perhaps non-trivial) risk that his employee will
be arrested by the feds (and thus unavailable for work)? Or that the
workplace may be the target of a federal law enforcement search? Or
that residual marijuana in the employee's physical system will affect
his job performance?
On that last point, recall that FEHA claims are viable only if the
employee can perform the essential job functions. So ruling for Ross
wouldn't require employers to hire employees whose medical marijuana
use deeply impairs job performance. Still, there is a difference
between performing the essential functions of a job and excelling at
the job, and there is an argument that an employer should be free to
pursue excellence, not bare competence, when a federally-proscribed
drug is responsible for any lapse in job performance.
Finally, and perhaps most importantly, the California court will have
to consider what the California legislature intended when it enacted a
provision in 2003 that made clear that employers did not have to
accommodate medical marijuana "use" on the jobsite "premises" or
during the hours of employment. Does this provision suggest that
accommodation is required so long as the medicinal marijuana is
ingested off the employer's property? Or does this language create no
such strong inference? And what does "use" mean here, anyway? Is a
person "using" marijuana on the jobsite if it is still in her
bloodstream when she is on the job, even though she inhaled it at home?
These and other questions are the ones the California Supreme Court's
Justices will grapple with, as they issue an opinion some time in the
next few months trying to make sense of the federal-state medicinal
marijuana hash. Whatever result the Court reaches, both the decision
and the fallout should be very interesting.
Vikram David Amar is a professor of law at the University of
California, Davis School of Law. He is a 1988 graduate of the Yale Law
School, and a former clerk to Justice Harry Blackmun. He is a
co-author, along with William Cohen and Jonathan Varat, of a major
constitutional law casebook, and a co-author of several volumes of the
Wright & Miller treatise on federal practice and procedure. Before
teaching, Professor Amar spent a few years at the firm of Gibson, Dunn