2014 MVP LAW SEMINAR IMPLICATIONS OF THE LEGALIZATION OF MARIJUANA www.mvplaw.com KEEP CALM AND CALL MVP DALLAS JULY 17TH KANSAS CITY AUGUST 7TH ST. LOUIS SEPTEMBER 25TH
IMPLICATIONS OF THE LEGALIZATION OF MARIJUANA I. The Powers of States to Supersede Federal Law Article 1, section 8, clause 3 of the United States Constitution, commonly known as the Commerce Clause states: The Congress shall have power... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; Article 1, section 8, clause 18 of the United States Constitution, commonly known as the Necessary and Proper Clause or the Elastic Clause states: The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. The Tenth Amendment of the United States Constitution declares: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Commerce Clause, the Necessary and Proper Clause and the Tenth Amendment remain a thicket in constitutional jurisprudence. The Commerce Clause was a limitation on federal power until NLRB v. Jones and Laughlin Steel Corporation, 301 U.S. 1 (1937) changed the Supreme Court s interpretation of Congressional Commerce Clause powers. Until NLRB, the Court consistently struck down New Deal legislation as beyond the power of Congress. In 1816, Congress created the Second National Bank of the United States though there was no express power to do so under the Constitution. The Necessary and Proper Clause and the attendant concept of implied powers justified the Supreme Court s decision in McCulloch v. Maryland, 17 U.S. 316 (1819) which held that Congress did have power to create the Second National Bank. The Tenth Amendment was the basis for the United States Supreme Court declining to review state court decisions relating to state constitutional law. Calder v. Bull 3 U.S. 386 (1798). It is fair to say that in more recent years the Tenth Amendment has been little used as a check on Congressional power. 1 2014 McAnany, Van Cleave & Phillips, P.A.
II. What Does This Have To Do With Marijuana Legalization? While twenty-three states and the District of Columbia 1 have legalized medical marijuana use and two states Colorado and Washington have legalized it for recreational as well as medical use, 2 with Florida, Ohio and Pennsylvania considering legislation to allow medical use of marijuana, possession, sale and use of marijuana remains a violation of federal law as a Schedule I substance. 21 U.S. Code 802 (16). Though the Obama Administration had suggested that enforcement of marijuana laws would not be a priority in states that had enacted medical marijuana laws, actual practice was somewhat at variance. In California, for example, there was a crackdown in 2011 ostensibly to reduce the abuse of the medical use and because California has lax in its regulation of medical authorization and dispensaries. 3 However, it appears even where the distributor of medical marijuana was effectively monitored by county law enforcement, the DEA destroyed that distributor s plants. 4 More recently, the DOJ has again advised that it will not make marijuana possession of distribution in states where use is legal where those states have implemented strong and effective enforcement systems to control the cultivation, distribution, sale and possession of marijuana in compliance with those laws and regulations is less likely to threaten the federal priorities.... Memorandum for All United States Attorneys, August 29, 2013 at 3. 5 Not surprisingly, however, the definition of strong and enforcement systems, like beauty and art, is in the eye of the beholder. 6 III. How Does This Affect Employers? The legal marijuana brouhaha probably has little effect on employers. For example, imbibing in alcoholic beverages, assuming one is of age and subject to time and place restrictions, is perfectly legal in most states, though perhaps not all cities or counties. This does not mean the employer cannot create and implement a policy prohibiting the consumption of alcoholic beverages while on the job or appearing for work while under the influence of alcoholic beverages. 1 http://medicalmarijuana.procon.org/view.resource.php?resourceid=000881 2 The District of Columbia would like to vote on legalizing marijuana for recreational use but Congress may not let that happen. http://www.washingtonpost.com/local/dc politics/odds are increasing that dc will vote onlegalizing pot but congress a wild card/2014/06/29/96d5568c fe13 11e3 932c 0a55b81f48ce_story.html 3 See http://www.brookings.edu/~/media/research/files/papers/2013/04/11%20marijuana%20legalization%20taylor/m arijuana%20policy%20and%20presidential%20leadership_appendix%201.pdf 4 http://www.nytimes.com/2011/11/24/us/medical marijuana target of us prosecutors.html?pagewanted=all 5 http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf 6 http://blogs.lawyers.com/2013/09/us attorney hints medical marijuana crackdown to continue/ 2 2014 McAnany, Van Cleave & Phillips, P.A.
Most employers already have policies which prohibit the use of nonprescription drugs or appearance at work under the influence of non-prescription drugs. That marijuana is legalized by states for medical use or for medical and recreational use does not change the employer s policies. IV. Any Exceptions to This Theorem? Of course there are. These seminars would not be any fun if we could not dream up exceptions. I suspect none of our attendees are active in states with medical or recreational marijuana use laws. Arkansas, Iowa, Kansas, Missouri, Nebraska and Oklahoma have no such laws so it is less of a problem. Our attendees in Illinois, on the other had may need to take heed. So long as marijuana is a Schedule I drug that cannot be lawfully prescribed under federal law and there is no countervailing state law, a doctor could not prescribe marijuana use for a medical condition. Thus, an employee could not avoid discipline if a drug test was positive for marijuana by claiming a prescription from a doctor. The doctor cannot prescribe the drug. What happens to an Illinois employer whose employee is prescribed medical marijuana for a health condition? The Illinois legislature thought of that problem and came up with The Compassionate Use of Medical Cannabis Pilot Program Act 7. Section 50 of the Act sets out both the obligations and rights of employers where the employee is a qualifying patient. Section 50 appears to be employer friendly with multiple exceptions to the non-discrimination policy set out in the law. It does not seem likely that employers in states that have not legalized marijuana but are contiguous to Colorado, for example, will be under any obligation to honor an employee s prescription as an excuse to avoid the employer s drug usage policy so long as marijuana remains a Schedule I substance. V. Where Do We Go From Here? This is an interesting question. It seems likely that we will actually obtain data on marijuana usage and effects. Colorado recently released a report on Market Size and Demand 8 which provided some indicators which surprised Governor Hickenlooper who 7 http://www.ilga.gov/legislation/98/hb/pdf/09800hb0001eng.pdf 8 http://www.colorado.gov/cs/satellite?blobcol=urldata&blobheadername1=content Disposition&blobheadername2=Content Type&blobheadervalue1=inline%3B+filename%3D%22Market+Size+and+Demand+Study%2C+July+9%2C+2014.pdf %22&blobheadervalue2=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1252008574534&ss binary=true 3 2014 McAnany, Van Cleave & Phillips, P.A.
had feared that legalization would open a Pandora s Box of troubles for the Centennial state. He is no longer so fearful. 9 A Gallup Poll indicates 58% of Americans are in favor of legalizing marijuana. 10 It may be that the federal laws making marijuana a Schedule I drug will go the way of prohibition. If so, it is highly likely that the federal government will largely leave the states to their own regulatory devices as it does with alcoholic beverages. Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation. 9 http://www.colorado.gov/cs/satellite?blobcol=urldata&blobheadername1=content Disposition&blobheadername2=Content Type&blobheadervalue1=inline%3B+filename%3D%22Market+Size+and+Demand+Study%2C+July+9%2C+2014.pdf %22&blobheadervalue2=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1252008574534&ss binary=true 10 http://www.gallup.com/poll/165539/first time americans favor legalizing marijuana.aspx 4 2014 McAnany, Van Cleave & Phillips, P.A.
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