Is Medical Marijuana Legal in Your State? Don’t Bet Your Job on It

Several states have passed laws (many of them passed through voter initiatives) which legalize medical marijuana. The exact scope of these laws differs, but, generally, patients are allowed to cultivate and possess limited amounts of marijuana if the have the recommendation of a licensed physician in the state.

These laws typically allow doctors to recommend the use of marijuana for a list of diseases and medical conditions. Marijuana’s main active ingredient, THC, appears to have some extremely powerful anti-nausea effects. This makes it very useful for alleviating the side effects of cancer and HIV/AIDS treatment. Many such patients report that use of medical marijuana improves their quality of life greatly.

For some such patients, it’s apparently effective enough for them to return to work. Based on a new ruling (reported here and here) from the Oregon Supreme Court, this could present a problem. The Court ruled that employers can fire employees for “illegal” use of marijuana, even if such use is permitted under state law. The case involved an employee who used medical marijuana in accordance with Oregon law. His employer became aware of this, and fired him. He sued, arguing that this violated Oregon’s equivalent of the Americans with Disabilities Act, which bars employment discrimination against otherwise qualified employees on the basis of disabilities which can be overcome with reasonable accommodation.

However, the Oregon anti-discrimination law has a provision saying that courts should construe it in a manner consistent with the federal Americans with Disabilities Act, whenever possible. Because marijuana is illegal under federal law, the ADA would never require an employer to allow an employee to use marijuana (obviously, being required to break the law isn’t a “reasonable accommodation”).

This is one of many examples of how state and federal law can come into conflict, especially with respect to medical marijuana. Under federal law, it is illegal to posses, cultivate, or sell marijuana. There are no exceptions for medicinal use.

As a result, there is a bizarre dynamic for enforcement of anti-marijuana laws, and the debate surrounding medical marijuana.

As to enforcement, medical marijuana is currently allowed, to varying extents, in 17 states, with several others considering legalizing it. However, even if all 50 states decided to legalize marijuana for medical (or, for that matter, recreational) use, it would still, barring an act of Congress, be illegal under federal law. And the federal government would be able to enforce that law within the borders of the U.S.

Under the U.S. Constitution, federal law preempts state law whenever there is a conflict between the two. And in 2005, the U.S. Supreme Court ruled that the federal government, under the interstate commerce clause of the U.S. Constitution, has the power to regulate the cultivation of marijuana, even if it never crosses state lines.

Under the Bush Administration, the federal government took a fairly aggressive stance in enforcing marijuana laws, seemingly making a point to arrest the operators of dispensaries that were legal under state law, to make a point and demonstrate “who’s boss.” This has changed somewhat since President Obama took office – he has issued instructions to the Department of Justice not to go after growers and distributors of marijuana if they are operating within the laws of their states, but this doesn’t change the fact that the federal government is still free to go after these people, if the current president, or a future president, decide to change this policy.

This has also caused the debate about medical marijuana to be framed in a somewhat bizarre way, with its supporters (who tend to be fairly liberal) arguing, in part, on the basis of “States’ Rights,” a traditionally-conservative rallying cry.

The opponents of medical marijuana, who tend to be more conservative, argue that the supremacy of federal law overrides any contradictory state laws.

This has turned the traditional dynamic of political discourse on its head, and made for some strange bedfellows, as well. For example, in the case that reaffirmed the federal government’s power to prohibit marijuana use, the 3 dissenting justices were all from the Court’s conservative wing, mostly on the grounds that the ruling represented yet another expansion of federal power under the commerce clause.

The liberal wing, on the other hand, probably recognized that ruling against the federal government could have established a precedent leading to the rollback of many federal programs that have become entrenched in American society since the New Deal.

The debate over medical marijuana is clearly about much more than whether or not a drug should be legalized for medical purposes. The debate is about where federal power ends and state sovereignty begins.

By: Rusty Shackleford