Marijuana is a controlled substance regulated by the federal government under the Controlled Substances Act (“CSA”). The CSA prohibits the cultivation, distribution, and possession of marijuana for any reason except to engage in federally approved research. Thus, according to federal law, activities related to marijuana are generally prohibited and punishable by criminal penalties. Nonetheless, there are currently 20 states and the District of Columbia that have enacted laws to legalize the usage of medical marijuana by qualified users. And while recreational use of marijuana is forbidden under federal law, Colorado and Washington were recently the first states to legalize, regulate, and tax small amounts of marijuana for such purposes. Thus, while certain, restricted marijuana usage is authorized under state law; marijuana-related activities still remain subject to federal criminal prosecution.

So why are residents in states like Colorado and Washington are permitted recreational use of marijuana legally. That’s where the doctrine of preemption steps in. This doctrine, based on the Supremacy clause of Article VI of the Constitution, prevents states from enacting laws that are inconsistent with federal law. Consequently, where federal and state law conflict, the state law is typically preempted and considered void without effect.

The answer is simple.  The CSA does not preempt all state laws associated with controlled substances, as the act leaves room for states in making their own choices when it comes to regulating controlled substances. Therefore, states are permitted to pass laws relating to the regulation of marijuana. The only caveat is that the conflicting state and federal law must not create a “positive conflict” such that the two “cannot consistently stand together.” (see 21USC901). Whether state laws legalizing the recreational use of marijuana will be subject to federal preemption is yet to be determined as there has been minimal analysis on the matter by federal courts. In fact, in a recent interview, even President Obama stated that recreational marijuana use in states that have legalized the drug was not a major concern. Around that same time the Justice Department stated that they would not sue to preempt state marijuana laws so long as the states have strict policies in place regarding distribution of the drug.

Similarly, state laws preempt local ordinances within their states when they conflict. Currently, under Michigan law, recreational marijuana usage is categorized as a criminal misdemeanor punishable by up to one year in jail and a $2,000 fine. However, Lansing will be the fifth city in Michigan to allow voters to approve legalization of small amounts of marijuana within city limits. Specifically, the bill, which will be voted on in November, would decriminalize possession of an ounce or less of marijuana on private property. First time offenders would face a fine of $25, second offenses come in at $50 fine, and a $100 fine is imposed for following offenses. Lansing isn’t the first city in Michigan to vote on the reformation of marijuana laws; just last year voters in Detroit, Flint, Grand Rapids, and Ypsilanti voted in favor of measures to abolish civil and criminal penalties relating to marijuana use.

However, like federal preemption, state law preempts local ordinances.  If the ordinance were to pass, a Lansing resident found in possession of marijuana could be charged under state law. Moreover, state (or federal) law enforcement could arrest and charge individuals in possession of marijuana in Lansing or any other city in Michigan where possession of small amounts of marijuana is permitted. Thus, regardless of whether the proposed amendment is approved by the voters, marijuana will remain a controlled substance under state and federal law. Therefore, law enforcement will maintain the power to choose to enforce the city or state law, which would make a big difference regarding punishment.

 

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