In the United States legal system exists in two levels, Federal laws, and State laws. Federal laws are created by the U.S. Congress (Senate and House of representatives). It is applied to the entire nation including all 50 states and the District of Columbia, and U.S. territories.
The U.S. Constitution is formed by federal laws establishing the power and responsibility of the government, as well as the protection and preservation of the basic rights of the American citizens. On the other side, State laws represent the law of each U.S. state and it is only applicable in that specific state.
These laws are applied to residents of the state, visitors of the state and to business entities, corporation or any organization that operates in the state (Daunt 1). Moreover, there have been cases in which federal laws and state laws clash with each other. Marijuana will be the topic to follow; even though it remains illegal under federal law, certain states have passed laws to legalize it for recreational and/or medical purposes.
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The law that applies to situations where state and federal laws disagree is called the supremacy clause, which is part of article VI of the constitution and states that “the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” In other words, when there is a conflict between state and federal laws, it is the federal law that prevails.
Thus, if a federal and state law contradicts with each other, you can follow the state law, but the Feds can decide to stop you at any time (Daunt 1). Nowadays, the legalization of marijuana has been a conflict between the two and a great example of this conflict because if a federal regulation prohibits the use of marijuana, but the state allows it, it is the federal law that prevails as it was mentioned before.
However, it is been known that nine states have legalized marijuana for recreational purposes, and thirty states have some form of legalized medical marijuana by January 2018 (Fisher 1). At the same time, it is known that since 1970, cannabis (the legal term of marijuana) remains a schedule I drug under the federal Controlled Substances Act, making its possession or use illegal under federal law.
The marijuana law is one of the fastest-evolving areas of law in the country, and the standards vary widely from state to state. While some states have decided that it is time to legalize medicinal and/or recreational use, others have merely reduced sanctions for certain cannabis-related crimes (a process called “decriminalization”). Even so, other states have maintained their marijuana prohibitions altogether. In states that accept medical marijuana, patients usually must have a doctor’s prescription to treat certain approved medical conditions.
During the Obama administration, there were two memos written by attorneys at the United States Department of Justice. These memos provided the states the basic guidelines and information for legalizing marijuana (Fisher 1). If the states met with the guidelines in the memos, federal prosecutors were encouraged to direct their attention somewhere else.
The first memo, written by Deputy Attorney General David Ogden in 2009, provided guidance for states that legalized marijuana only for medical purposes (Fisher 1). He emphasized that the Justice Department’s priorities focus on “the disruption of illegal drug manufacturing and trafficking networks,” but clarifies, “As a general matter, the pursuit of these priorities should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana” (Fisher 1). However, Ogden said that sales to minors, violence, and unlawful use of firearms associated with medical marijuana sales are valid circumstances for prosecution. The second memo was then published by Deputy Attorney General James Cole in 2013 regarding not only the used of medical marijuana but also recreational used.
In August 2013, the Department of Justice (DOJ) announced that it will allow states to legally regulate the production, distribution, and sale of marijuana. The directive issued by DOJ to the Federal Prosecutors explained the federal priorities in relation to compliance with marijuana laws in states that have legalized it. While keeping the right to challenge state legislation and to enforce federal marijuana laws in certain circumstances, the directive expresses that the federal government will coordinate with the states, rather than seek to interfere, unless the states fail to comply with certain federal priorities, such as prevention of access by minors, the diversion of marijuana to other states, the increase in violence or drugged driving, or damage to public spaces.
Moreover, the Rohrabacher-Farr amendment was first introduced in 2001 and it was passed by the Congress on its eight-try in 2014 under President Obama’s administration. This amendment prevents the Department of Justice from spending federal funds to prosecute marijuana-related activities if they are permitted under state medical marijuana laws only, it does not include recreational marijuana. These restrictions on federal enforcement are part of the Commerce-Justice-Science bill that expires at the end of every fiscal year.
Every year the Congress needs to approve its inclusion in the CJS in order for it to continue being valid. Therefore, there are several federal agencies that have issued guidelines and different memorandums to manage the emerging issues within medical marijuana. As of 2016, every federal agency except the Drug Enforcement Administration (DEA), has stopped ignoring medical marijuana and stated that it is not a priority (Daunt 1). However, with the new administration, this guidance was rescinded by Attorney General Jeff Sessions.
The medicinal properties that probably have marijuana and its components have been the focus of several scientific investigations and several debates for decades. In pharmaceutical and medical terms, it seems to be very embryonic. Being an illegal substance for so many years, it is very difficult for researchers to obtain marijuana. At the University of Mississippi, there is a center that produces marijuana for research; The researchers must do a project, which is approved by the DEA, the Department of Health and another health entity.
It is a bureaucratic process to send a certain amount of marijuana for research on its effects, such as its use in the treatment of epilepsy, for example. But it has been very controlled and very limited because it is not possible to treat it in humans; many studies have not reached these clinical stages to give cancer patients to see how they react. The opening of the states that have legalized the marijuana, bank the government to allow and expand the research on its therapeutic uses. Especially knowing if there is indeed an improvement of children with epilepsy.
THC (tetrahydrocannabinol) is the chemical compound in cannabis and has shown medical benefits for certain specific uses. There are two medicines based on THC, approved by the US Food and Drug Administration (FDA), dronabinol (Marinol) and nabilone (Cesamet), prescribed as a pill for nausea in patients who are receiving chemotherapy and to stimulate appetite in patients with AIDS syndrome.
Apart from this, there are several marijuana-based drugs that have been approved or that are in the process of clinical trials. Nabiximols (Sativex), a mouth spray that is currently available in the United Kingdom, Canada, and several European countries for the treatment of spasticity and neuropathic pain that may accompany multiple sclerosis, combines THC with other chemicals in the marijuana called cannabidiol (CBD). However, the use of marijuana as a medicine presents some problems such as the adverse effects of smoking and the THC-induced disabilities of cognitive abilities. In any case, several states have legalized the dispensing of marijuana or its extracts for people with certain health conditions.
Another concern with “medical marijuana” is that so far very little is known about the impact that long-term marijuana use can have on people with health vulnerabilities or given their age who are being dispensed These drug-like older adults or people with cancer, AIDS, cardiovascular disease, multiple sclerosis or other neurodegenerative diseases.
As a rule of thumb, it is known that employers are not allowed to discriminate against employees with disabilities. Both federal and state laws provide protection for employees. Some states have passed legislation to protect workers that use medical marijuana so then employers in those states cannot terminate or refuse to hire an applicant just because of their off-work medical marijuana use.
However, employers could be protected under federal law and argue that cannabis is a scheduled I drug and its use is illegal under federal law. The following case is about an employment discrimination claim based on a person’s medical marijuana use, as authorized under the Connecticut Palliative Use of Marijuana Act (PUMA). PUMA prescribes qualifying conditions for the consumption of marijuana for medical purposes and also contains an anti-discrimination provision that bars employees to fire, penalize or threat someone just because they are medical marijuana patients, even though, they are qualifiers for it under the state law.
But, for the first time, a federal court sided with an employee that brought a claim against her employer who terminated her job because of her medical marijuana use. According to a lawsuit filed in Connecticut, plaintiff Katelin Noffsinger is a registered medical marijuana user. In 2016, Noffsinger applied for employment with Bride Brook Nursing & Rehabilitation (“Bride Brook”) which in this case they are known as the defendant. Bride Brook offered her the work dependent on passing a pre-employment drug check. Noffsinger made her potential employer aware that because she was a medical marijuana patient, she wouldn’t pass the drug check. Noffsinger took the drug test which confirmed the presence of THC. Bride Brook rescinded her job offer. Noffsinger brought a claim against Bride Brook alleging Bridge Brook had violated the anti-discrimination provision of the Connecticut Palliative use of Marijuana Act (PUMA). The company tried to dismiss the case saying the claim was preempted by the CSA (Controlled Substance Act), the Americans with Disabilities Act (ADA) and the Food, Drug and Cosmetic Act (FDCA).
Regarding the mentioned case, the federal court for the first time took action over the Controlled Substance Act claim. The court stated that the CSA does not prohibit employers from employing people that use marijuana for medical purposes. Meaning, state laws prohibiting employees from discriminating users of medical marijuana would prevail (Vaniman 7). Next, the court determined that ADA did not preempt PUMA because ADA allows employees to prohibit the use of illegal drugs at work, but it does not authorize employees to take adverse employment action based on the use of drugs outside the workplace. Finally, the court determined that FDCA does not regulate employment and for that reason, this act was not applied in the case. It is necessary to clarify that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.
Notwithstanding, Noffsinger’s case is important, first, because it is one of the very first cases in determining that marijuana’s illegality under federal law does not bar an employment claim under state law. The decision in Noffsinger’s case is not binding in other jurisdiction, but it could indicate the significant change in the federal courts’ statements over medical marijuana. Perhaps the federal courts’ reasoning could influence other federal judges to bring equal protection to medical marijuana patients until marijuana is rescheduled by the Controlled Substance Act (CSA).
Noffsinger illustrates that employers cannot trust the federal law or their status as a federal contractor to make employment decisions regarding employees that use medical marijuana.
Connecticut’s courts and other states are enforcing state laws against discrimination with respect to medical marijuana use. This is a great example of how state and federal laws clash with each other and how they affect the community with its laws. Even though under federal law cannabis is still a scheduled I drug, states are opening doors to the opportunity of the legalization of this drug because of its benefit when it comes to treating patients with certain health conditions. When it comes to talking about recreational marijuana, it takes a different path since it is used mostly for the satisfaction of consumers instead of necessity in some of the cases. Nowadays, the legalization of cannabis (marijuana) continues to grow in the United States since it seems that more than 60% of the population agrees and support that it should be legalized at the federal level (McCarthy).
Some specialists suggest that the phenomenon of the decriminalization and legalization of marijuana is a product of the “diffusion of policies”, where adjoining territories adopt similar measures for the purpose of reproduction. After Canada legalized marijuana nationwide on June 19, 2018, many anticipate a broader change in US national policies. According to the Washington Post, the first changes could be seen in the federal government, especially when community support and voting is the key, and where “six of every ten American citizens support the legalization of marijuana.” According to a study by the Pew Research Center published by September 2018. Issues such as the crisis of opiates, trafficking and the increase of communities at risk could reformulate the narrative around the consumption of marijuana nationwide, adding to the radical transformation that the country is experiencing.
To conclude, medical marijuana could and could not be a loophole to get around federal law. The states that have passed its legalization need to make clear their laws to citizens, so they have a good interpretation of it, making also clear that marijuana is still illegal under federal law and it could have its consequences.
Nonetheless, it is known that medical marijuana helps people with certain health conditions to get better, have less pain and continue their lives as if it was a regular medicine prescript by their doctor. The support of marijuana has expanded over the decades raising the question of where the ceiling in support might be. States that permit medical marijuana are more prevalent than those that allow recreational marijuana. The support of the public is consistent across the country and the Federal government should start taking action, knowing the benefits that cannabis can bring when treated as medicine and the economic opportunity that it has.
