Judge Mark Somers and the Michigan Medical Marihuana Act: Federal Preemption Analysis

Michigan Medical Marijuana ActChief Judge Mark Somers of the 19th District Court in Dearborn, Michigan, ruled on March 7, 2011, that the Michigan Medical Marihuana Act (MMMA) is unconstitutional because federal laws trump Michigan’s attempted decriminalization of marijuana for seriously ill patients. Federal preemption analysis of Michigan’s medical marijuana law raises interesting and complex issues, but the threat of “despotism of an oligarchy” becomes alarmingly clear when the case of People of the City of Dearborn vs. Robert Michael Brandon [click for a copy of the opinion] is examined. The judge’s analysis of the federal preemption doctrine is cursory and fatally flawed. Furthermore, the decision does not take into account the prevailing analysis of other courts from across the nation.

The Supremacy Clause of the United States Constitution contained in article VI, paragraph 2, establishes that the U.S. Constitution, Federal Statutes, and U.S. treaties are “the supreme law of the land.” It states that:

This Constitution, and 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.

This “assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.”

Marijuana is illegal under the federal Controlled Substances Act (CSA). However, 15 states currently have legalized some form of medical marijuana: Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia.

Jumping into the preemption doctrine is an unwise and potentially treacherous journey down the rabbit hole. Professor Richard Epstein, one of the most influential legal thinkers of modern times, has referred to the preemption doctrine as an “arcane topic” that has recently “generated much public debate.” The “[o]nce-esoteric questions over the federal preemption of state law are now the subject of a prominent, politically charged debate.” These debates cover the historic police powers traditionally exercised by state governments to advanced regulatory schemes that include environmental protection, where “billions of dollars hang on regulatory nuances and complex points of law.” As Epstein explains, “preemption law often tests the patience of even the wonkiest lawyer.”

The Federal Controlled Substances Act, 21 USC § 801 et seq.,  sets forth a detailed schedule of various drugs and regulates these substances, enacting criminal provisions and penalties not unlike Michigan’s Public Health Code, particularly MCL § 333.7101 et seq. If these two laws disagree, does the Supremacy Clause overrule Michigan’s law?  And if it does, how far does preemption reach into striking Michigan’s laws?

In a case heavily relied upon by the Dearborn judge, a divided US Supreme Court addressed California’s medical marijuana laws. In Gonzales v Raich, 545 U.S. 1, 9 (U.S. 2005), the majority exercised judicial restraint, holding that the CSA was a valid exercise of Congressional power. The Court held:

The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. Under the Raich decision, there is little doubt that Congress could explicitly preempt state laws that permit the use and cultivation of medical marijuana. Importantly, however, the Court restricted its holding, ruling that the federal authorities could enforce federal laws if they chose to exercise those powers. As a result, California’s medical marijuana law was left largely untouched, but federal authorities were allowed to enforce federal prohibitions.

In an employment law case, a private employer took adverse action against an employee for off-work medical marijuana use. The employee brought suit, and the Supreme Court of Oregon held that the CSA preempted the state law. In accord with the doctrine of judicial restraint, the Court limited its ruling, holding that:

The only issue that employer’s preemption argument raises is whether federal law preempts [Oregon’s medical marijuana law] to the extent that it authorizes the use of medical marijuana. In holding that federal law does preempt that subsection, we do not hold that federal law preempts the other sections of the Oregon Medical Marijuana Act that exempt medical marijuana use from criminal liability. [Emphasis added.]

Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Ore. 159, 172 n 12 (Or. 2010).

In yet another recent employment law case, a Michigan federal district court refused to rule whether Michigan’s medical marijuana law violated the preemption doctrine, holding instead that the MMMA did not create a private cause of action against an employer. As the Court held, “the Court does not reach the issue of the MMMA’s preemption by federal statutes. See Qwest Corp. v City of Santa Fe, 380 F.3d 1258, 1267 n. 7 (10th Cir. 2004) (‘Because federal preemption of a state or local law is premised on the Supremacy Clause of the United States Constitution and because of the longstanding principle that federal courts should avoid reaching constitutional questions if there are other grounds upon which a case can be decided,’ the Court must determine whether the matter can be decided without turning to federal preemption.)” Casias v Wal-Mart Stores, Inc., 2011 U.S. Dist. LEXIS 15244, 16-17 (W.D. Mich. Feb. 11, 2011)

Several California cases have dealt with the preemption issue before the 19th District Court in Dearborn decided Brandon. These opinions go completely unaddressed by the Brandon Court, even though these decision provide persuasive guidance on the issue.

First, in City of Garden Grove v Superior Court, 157 Cal. App. 4th 355, 383 (Cal. App. 4th Dist. 2007), the Court addressed whether a municipal government must return marijuana to a patient after it was seized in contradiction of the state medical marijuana law. The city argued that the marijuana should not be returned because it constituted contraband under federal laws, and the CSA preempted the state law. The Court rejected the preemption argument, holding:

[The] assumption against preemption has particular force in this case. Preemption, it must be remembered, is fundamentally a question of congressional intent. And we are adjured to presume against preemption unless we find it to be the “ ‘ “clear and manifest purpose of Congress.” ’ ” But in enacting the CSA, Congress made it clear it did not intend to preempt the states on the issue of drug regulation. Indeed, “[t]he CSA explicitly contemplates a role for the States in regulating controlled substances … .” It provides:“No provision of [the CSA] shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision … and that State law so that the two cannot consistently stand together.” (21 U.S.C. § 903.) “This express statement by Congress that the federal drug law does not generally preempt state law gives the usual assumption against preemption additional force.” [Internal citations omitted.]

Garden Grove was appealed to the US Supreme Court, which declined to review the issue on December 1, 2008. This establishes tacit approval short of an endorsement by the high court.

In County of San Diego v San Diego NORML, 165 Cal. App. 4th 798 (Cal. App. 4th Dist. 2008), the California courts addressed whether “conflict preemption” or, alternatively, “obstacle preemption” barred state medical marijuana laws. Finding no positive conflict between the medical marijuana law and federal laws consistent with the CSA, the court rejected conflicted preemption. Furthermore, the court held that obstacle preemption was inapplicable because “not every state law posing some de minimus impediment will be preempted. To the contrary, ‘[d]isplacement will occur only where, as we have variously described, a ‘significant conflict’ exists between an identifiable ‘federal policy or interest and the [operation] of state law.’”

The United State Supreme Court refused to review San Diego on May 18, 2009. Thus, the California medical marijuana survived a second attack on preemption grounds before the high court.

Finally, in Qualified Patients Assn. v. City of Anaheim, 187 Cal. App. 4th 734, 758 (Cal. App. 4th Dist. 2010), a California court addressed the preemption doctrine once again. As the California court described:

[The California] Supreme Court has identified “four species of federal preemption: express, conflict, obstacle, and field. First, express preemption arises when Congress ‘define[s] explicitly the extent to which its enactments pre-empt state law. Pre-emption fundamentally is a question of congressional intent . . . and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.’ Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. Third, obstacle preemption arises when ‘ “under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” ’ Finally, field preemption, i.e., ‘Congress’ intent to pre-empt all state law in a particular area,’ applies ‘where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress “left no room” for supplementary state regulation.’”

The first and the last of the foregoing categories do not apply here, given language in the CSA “demonstrat[ing] Congress intended to reject express and field preemption of state laws concerning controlled substances.

[Internal citations omitted; emphasis added.]

In the Brandon decision, Judge Somers held, in cursory fashion, that the MMMA is preempted under all four doctrines, without further analysis. In less than 3 pages, the Dearborn decision presumes to render the MMMA unconstitutional without addressing the nuances presented by the California cases that have been repeatedly survived appeals to the US Supreme Court. In fact, the Dearborn decision nearly abandons any analysis of the CSA, while making sweeping declarations striking Michigan’s law.

The ramification of this reckless decision may be startling. While Judge Somers clearly holds that the MMMA is unconstitutional, he has also inadvertently ruled that Michigan’s Public Health Code is unconstitutional. By holding that “field preemption” bars the Michigan medical marijuana law, Michigan cannot decriminalize medical marijuana any more than it can promulate rules regarding various scheduled controlled substances. Michigan cannot enforce its laws against possession, delivery or manufacturing of cocaine, heroin or LSD because the federal government’s CSA is “sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” All state drug laws, according to Somers’ legal reasoning, are preempted through field preemption.

While this ruling is clearly unsupported by prevailing authorities, Judge Somers has ruled that the 19th District Court is unable to enforce virtually any drug crime.  This is clearly an absurd result stemming from the judge’s eagerness to attack the MMMA.

For more on this subject, please review, “Judge Mark W. Somers and the Michigan Medical Marijuana Act: Reckless Judicial Activism.”