State law must address federal scheduling because of the phrase used in the federal statute as a pre-condition for placement in schedule 1 “currently accepted medical use in treatment in the United States.”
The phrase “currently accepted medical use” is not defined in the federal statute.
Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991):
neither the statute nor its legislative history precisely defines the term “currently accepted medical use”
Colorado has two examples that highlight this situation very well.
In 2010, Colorado asked the DEA to reschedule marijuana to schedule 2 for pharmaceutical purposes. See HB1284 at page 9, signed by the Governor of Colorado on June 7, 2010.
See C.R.S. 12–43.3–202(g) (2017):
In recognition of the potential medicinal value of medical marijuana, make a request by January 1, 2012, to the federal drug enforcement administration to consider rescheduling, for pharmaceutical purposes, medical marijuana from a schedule I controlled substance to a schedule II controlled substance
That request should have demanded removal from schedule 1 based on “currently accepted medical use” in the United States (Colorado) as a matter of constitutional law (federalism).
In 2015, the Colorado Supreme Court decided medical marijuana is not legal in Colorado because it remains in federal schedule 1.
Coats v. Dish Network, 350 P.3d 849, 850 (Colorado 2015):
Therefore, an activity such as medical marijuana use that is unlawful under federal law is not a “lawful” activity under section 24–34-402.5
People v. Crouse, 388 P.3d 39, 43 (Colorado 2017):
Consistent with our holding in Coats, then, we again find that conduct is “lawful” only if it complies with both federal and state law
Please note that Brandon Coats is a disabled paraplegic who thought his employment was protected if he abided by the terms of the state medical marijuana law which the Colorado voters added to their state constitution in 2000.
I’m not sure how much technical accuracy goes into a direct ballot initiative amending a state constitution, but we can do better in Iowa. When a state refuses to claim state accepted medical use is exempt from schedule 1, it creates a conflict with schedule 1 which could have been avoided. If Colorado had said state medical use is exempt from federal schedule 1, then the Colorado Supreme Court would have had to determine whether that is so. Instead, the court just ruled it isn’t legal because the state did not challenge federal schedule 1. We should not repeat this mistake here in Iowa. Colorado has never included marijuana in its state schedule 1, so state schedule 1 has never been an issue in Colorado.
If state medical use is exempt from schedule 1, then it is legal under both state and federal law. If state medical use is not exempt, then schedule 1 is illegal as applied to the “currently accepted medical use” in the states.
Grinspoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987):
Congress did not intend “accepted medical use in treatment in the United States” to require a finding of recognized medical use in every state
Gonzales v. Oregon, 546 U.S. 243, 258 (2006):
The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.
Iowa should say both things: (1) state accepted medical use is exempt from schedule 1; and (2) schedule 1 is invalid for any substance with accepted medical use in any state. Federal schedules are not binding on the states, so a state could place marijuana in state schedule 1 even if the federal administrative agency entirely removed marijuana from all of the federal schedules. So, it’s quite easy to make the case that federal schedule 1 is unlawful for marijuana if even one state accepts marijuana for medical use. It does not deprive any state from finding marijuana has no medical use in that state, although there are only four states that have not accepted any form of marijuana for medical use.
What I am thinking is that the easiest thing for the Iowa legislature to do would be to add the same language to the statute that the Iowa Department of Public Health has included on the owner certification form.
Or, at least start the discussion with the language the Iowa Deparment of Public Health is using and then ask if it is sufficient.
Here is what the Iowa Department of Public Health has written on the owner certification form:
any activity not sanctioned by Iowa Code chapter 124E and proposed administrative rules may be a violation of state or federal law and could result in arrest, prosecution, conviction, or incarceration
The commonly accepted argument is that the federal administrative agency can interpret the meaning of “currently accepted medical use” because that was the court’s ruling in 1991/1994. Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936 (D.C. Cir. 1991); Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994). However, the 1994 federal court ruling has never been reconsidered by a federal court on the constitutional law issue of state laws defining “currently accepted medical use.” California was the first state to accept the medical use of marijuana in 1996. A federal administrative agency does not have the power to nullify a state law without the express consent of Congress, which is totally lacking here. The federal government has never sued a state for enacting a state medical marijuana program. So, how could it be a violation of a federal statute? Forty-six state have enacted laws accepting some form of marijuana for medical use. It would be absurd to imply those forty-six states intended to authorize the violation of a federal law. When we vote for federal elected officials, we vote for them at a state voting location. There is no federal voting booth.
A current Federal Aviation Administration regulation adopted in 1973 really hits the nail on the head:
Title 14: Aeronautics and Space
PART 91—GENERAL OPERATING AND FLIGHT RULES
§91.19 Carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances.
(a) Except as provided in paragraph (b) of this section, no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marihuana, and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.
(b) Paragraph (a) of this section does not apply to any carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.
Anyone manufacturing, dispensing, or consuming these products here in Iowa should be able to sleep at night knowing they are in full compliance with all applicable laws, both state and federal. Let’s resolve this matter in January when the Iowa legislature reconvenes and not leave it for a disabled Iowa citizen to fight it out in court.