By John Paul Abda, Feature Editor
The issue of marijuana legalization has permeated the legislative bodies of nearly every state in the country. Whether or not a particular state has enacted laws favoring legalization, it is more likely than not that their respective legislatures have had to deal with the issue in some capacity. Currently, 33 states and the District of Columbia have passed some sort of legislation relating to the legalization of marijuana.[1] A majority of states have legalized the use of medical marijuana, while a handful of states have gone as far as to legalize the recreational use of the drug. Pennsylvania is a medical marijuana state, meaning that the state legislature has legalized the use of marijuana for certain medical purposes.[2] Recently, there have been several signs from Pennsylvania officials that seem to support the notion that Pennsylvania may soon become a recreational use state. When making this type of policy decision, it is important to consider not only the tensions between federal and state law, but also the legal implications for Pennsylvania residents who find themselves affected by the issue.
In the United States, controlled substances are placed into one of five schedules based on the risks associated with the drug and its accepted medical uses. Schedule I drugs are those that are considered to have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.[3] Marijuana is currently listed as a Schedule I drug under federal law.[4] Due to this scheduling of marijuana, every state that has legalized any use of the drug, including medical use, is in direct violation of federal law. Therefore, any citizen currently using marijuana legally under state law is still considered to be committing a crime under federal law. This creates a handful of problems not only for individual citizens of these states, but also for the courts that are dealing with such conflicts.
The complex nature of this issue creates a constitutional friction between the states and the federal government. An article from the Cardozo Law Review, High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States, provided two constitutional theories that seem to be at odds with each other when applied to the issue of marijuana legalization.[5] On one hand, there is the doctrine of federal preemption originating from the Supremacy Clause of the Constitution of the United States. On the other hand is the anti-commandeering doctrine which is derived from the Tenth Amendment of the Constitution of the United States.[6] The doctrine of federal preemption essentially requires that a state law that directly violates a federal law must yield to the latter. If this position is applied to the current marijuana legalization issue among the states, then the answer is clear: state laws legalizing marijuana are invalid. If one takes the anti-commandeering approach, the issue becomes less clear. The anti-commandeering doctrine provides that federal statutes cannot force state legislatures to enforce a federal regulatory program.[7] In the context of marijuana legalization, the federal statute at issue is the Controlled Substances Act (CSA). The federal courts clearly support the federal preemption doctrine as of now, but with the increasing support for marijuana legalization among the states, the anti-commandeering doctrine may come into play in the near future. For the time being, the federal policy remains the same: any state that has legalized any use of marijuana is in direct violation of federal law.
Despite the federal government’s reluctance to submit to the will of the states regarding marijuana legalization, there have been various signs from state officials that Pennsylvania may soon become a recreational use state. Governor Tom Wolf sent his Lieutenant Governor on a “recreational use tour” earlier this year in order to gauge the support for recreational use among Pennsylvania residents.[8] After the tour concluded, Governor Wolf announced that the report produced results indicating that the majority of Pennsylvania residents support recreational marijuana legalization and thus, he does as well.[9] Following this announcement, the Governor and his Lieutenant Governor called for three actions: asking the legislature to provide the Governor with a bill that decriminalizes non-violent and small cannabis related offenses; seeking a path for restorative justice through expungement of past convictions for the previously mentioned cannabis offenses; and pushing the general assembly to debate and consider adult recreational use.[10] Pennsylvania’s Attorney General followed suit in stating that he supports the efforts to legalize the recreational use of marijuana.[11] In a September 27 tweet, Attorney General Josh Shapiro stated that he is now in support of efforts to legalize, regulate, and tax the recreational use of marijuana in Pennsylvania.[12] The announcements by these two prominent Pennsylvania officials clearly illustrate the dichotomy between federal and state public policy on the issue of marijuana legalization.
The dueling public policies of the Pennsylvania State Government and the federal government can have serious legal implications for residents who find themselves involved in the issue. Pennsylvania courts have had to deal with multiple challenges from residents who were arrested for marijuana charges and subsequently challenged the validity of the federal scheduling of marijuana under the Controlled Substances Act. In Commonwealth v Waddell, the appellant, following a marijuana related conviction, argued that marijuana no longer fits the definition of a Schedule I controlled substance under the CSA.[13] The primary argument being that there are now several accepted medical uses for marijuana in the United States and thus, it cannot accurately be considered a Schedule I drug.[14] Although the court agreed that it would be “extremely difficult to conclude that there is ‘no accepted medical use in the United States’ for marijuana,” the court held that the recognition of some medical value does not, ipso facto, remove marijuana from the list of Schedule I substances.[15] Further holding that there is no requirement that Schedule I substances continuously conform to the standard that there is no currently accepted medical use for the substance in the United States.[16] In Commonwealth v Jezzi, another Pennsylvania case, an individual convicted of marijuana related offenses argued on appeal that, following the passage of the Medical Marijuana Act (MMA) in Pennsylvania, the Schedule I classification of marijuana under the CSA denies Pennsylvania citizens equal protection.[17] The appellant argued that because the CSA states that marijuana has no accepted medical use, but the MMA creates avenues for Pennsylvania citizens to receive marijuana for medical treatment, the conflicting laws result in a violation of equal protection.[18] The court held that the MMA and the CSA can be read in harmony because the MMA did not demonstrate that the general assembly found marijuana to have accepted medical uses, but rather the legislative intent was to create avenues for research into the use of medical marijuana.[19] In both cases, Pennsylvania Courts rejected the argument that, because there is growing support for the notion that marijuana has accepted medical uses, marijuana cannot legitimately be classified as a Schedule I substance under the CSA. Although, if the Pennsylvania state legislature were to legalize the recreational use of marijuana, the analysis for situations similar to those discussed in the cases above would be drastically different.
The current trend in the United States supporting the legalization of marijuana, despite the federal prohibition on the drug, clearly illustrates the need for comprehensive legislative reform on the issue. The tension between state and federal government creates an environment of uncertainty and inconsistency among the courts, law enforcement officers, and residents alike, which can lead to serious legal implications for all involved. Without legislative harmony between the states and the federal government, it is inevitable that this issue will result in the inconsistent application of law in this country, and thus, a frustration of the fundamental constitutional proposition that every United States citizen is to be treated equally.
[1] Matej Mikulic, Medical Marijuana in the U.S. – Statistics & Facts, Statista (Nov. 19, 2018), https://www.statista.com/topics/3064/medical-marijuana-in-the-us/.
[2] Pa. Cons. Stat. Ann. § 10231.301 (West 2016).
[3] 21 U.S.C.A. § 812 (West 2018).
[4] Id.
[5] David S. Schwartz, High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States, 35 Cardozo L. Rev. 567 (2013).
[6] Id. at 570.
[7] Id.
[8] Commonwealth of Pa., Gov. Wolf, Lt. Gov. Fetterman Announce Report, Next Steps After Adult-Use Recreational Marijuana Tour, (Sep. 25, 2019), https://www.governor.pa.gov/newsroom/gov-wolf-lt-gov-fetterman-announce-report-next-steps-after-adult-use-recreational-marijuana-tour/.
[9] Id.
[10] Id.
[11]Jan Murphy, Pa. Attorney General Shapiro calls for legalizing recreational marijuana, Penn Live (Sep. 29, 2019), https://www.pennlive.com/news/2019/09/pa-attorney-general-shapiro-calls-for-legalizing-recreational-marijuana.html.
[12] Id.
[13] Commonwealth. v. Waddell, 61 A.3d 198, 200 (Pa. Super. 2012).
[14] Id.
[15] Id. at 206.
[16] Id. at 207.
[17] Commonwealth v. Jezzi, 208 A.3d 1105, 1109 (Pa. Super. 2019).
[18] Id.
[19] Id. at 1114.
