Intersection of Federal and State Cannabis Law Page 6 FBA/OC and all the other states that have medical use exceptions, coexist with the federal law? The interplay between the two laws exists for two main reasons: The first and foremost is be- cause of the way our two-tiered system of gov- ernment works. Secondly, it is based on how the federal statute on marijuana is drafted. Under the principles of federalism, states are free to exercise their police powers in matters concerning the health and safety of their citizen- ry. This means that it is up to the states to de- cide what constitutes a crime in their jurisdic- tions. And under the 10th Amendment, the fed- eral government cannot compel state law en- forcement agencies to enforce federal law. Such “commandeering” of state law enforcement has been held unconstitutional by the Supreme Court.7 The question of preemption in the cannabis con- text was raised in Garden Grove v. Superior Court. There, police officers in Garden Grove had seized cannabis from a patient who was au- thorized to use and possess cannabis under Cali- fornia’s CUA.8 The Superior Court ordered the police department to return the patient’s canna- bis. The department refused, stating that they would be violating federal law. The Superior Court ruled that the department was under no duty to enforce federal law.9 The Court of Ap- peal affirmed, holding that by returning the pa- tients cannabis, they would be following the laws of the state, which is the department’s tra- ditional duty.10 There are three classes of preemption: express, conflict, and field.11 Express preemption occurs when the federal law expressly states that this is the law all states need to follow. This is not the case with the way the CSA is drafted. It is also not field preemption, which happens when the law is so sweeping that it is obvious that the congressional intent was to create a law that states could not contradict. In fact, the CSA is exactly the opposite. Section 903 of the CSA states the following: (Continued from page 5) No provision of this subchapter shall be con- strued 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 . . . .12 Included in this section is a proviso that dis- cusses the last of the preemption classes, con- flict preemption. Unless the federal law and the state exception cannot coexist together, the state law is not preempted. Theoretically, the two laws here can exist together. The federal law under the Commerce Clause means that cannabis cannot be profited from and it cannot be transported across state lines. If a state law is not allowing an actor to profit off the sale of marijuana and to transport it across state lines, then it is possible to comply with both federal and state law. However, those who use cannabis for medical purposes and/or recreational purposes where it is legal on the state level are still violating fed- eral law. Currently, federal officials are limited in prosecuting state actors for reasons discussed below. However, criminal prosecution and even civil forfeiture by federal enforcement agencies is still possible whether the individuals are complying with state laws or not. Limitations on Federal Government’s Abil- ity to Prosecute Those Abiding by State Law: In 2011, under the Obama administration, Dep- uty Attorney General James Cole wrote a mem- orandum addressed to all federal prosecutors. The Cole Memorandum, although not binding, was a guide for how federal prosecutors should prioritize prosecuting cannabis offenders. The Memorandum highlighted that prosecutorial efforts should be targeted towards the most sig- nificant threats to the CSA and limited investi- gations of actors compliant with state medical marijuana laws. These enforcement priorities called for:13 1. Preventing the distribution of marijuana to minors; (Continued on page 7)