Editor’s note: The author’s law firm represents an entity that was one of the successful applicants for a Connecticut license to operate a medical cannabis growing facility, and another entity that has obtained a license from the state to operate a testing laboratory for medical cannabis.

To The Editor:

The Law Tribune’s editorial board breathlessly charges that any lawyer “willing to accept … without protest” Connecticut’s Palliative Use of Marijuana Act may not “really believe in the rule of law.” (“Marijuana and the Rule of Law,” April 7.) But this overheated conclusion is built on a premise that is demonstrably incorrect: that the Connecticut Legislature enacted a statute “we all know to a certainty is preempted by federal law.”

According to the board, in two decisions—U.S. v. Oakland Cannabis Buyers Cooperative (2001) and Gonzalez v. Raich (2005)—the U.S. Supreme Court “made clear” that the criminal prohibition on marijuana possession in the federal Controlled Substances Act (CSA) “preempts state laws permitting the sale or use of marijuana.” The court did no such thing. In Oakland Cannabis, the court held merely that in a federal prosecution under the CSA, a defendant may not properly assert a medical necessity defense even if such a defense would be permitted under state law. In Raich, the court issued the unremarkable holding that the federal government retains authority, under the broad mandate of the U.S. Constitution’s Commerce Clause, to outlaw purely intrastate marijuana cultivation, even if it might be lawful under state law.

In neither case did the court even consider whether, much less conclude that, a state law permitting marijuana use for medical purposes is preempted by the CSA.

It’s one thing if a state attempts to legislatively declare to be lawful a type of misconduct historically within the sole province of federal law enforcement authorities, say, treason and espionage, or currency counterfeiting. But it’s quite another thing if a state, acting in accordance with its traditional police power to define criminal conduct and regulate public health within its borders, merely concludes, as our state has done, that it will no longer unconditionally criminalize a particular activity notwithstanding the federal government’s policy to maintain its separate criminal ban on the same activity.

Just this year the Michigan Supreme Court, in Ter Beck v. City of Wyoming, emphatically rejected a federal preemption challenge to its state’s Medical Marijuana Act. The court noted that simply because a state elects to “part ways” with the federal government by exempting producers and users of medical marijuana from criminal prosecution under state law, it does not thereby frustrate the federal government’s ability to prosecute anyone for a violation of federal law, including a person whose conduct is blessed by state law. (Indeed, the U.S. Supreme Court’s recognition in Raich of the sweeping reach of federal authority to enforce the CSA even against in-state marijuana growing, actually is at odds with any claim that a state’s authorization of medical marijuana use somehow nullifies the CSA, or otherwise impedes the ability of federal law enforcement agents to investigate, prosecute or seek the incarceration of marijuana growers or users.)

Moreover, the court took note of the well-established principle that even if Congress has the power to broadly criminalize the intrastate cultivation, sale or use of cannabis, it lacks the authority to “commandeer” state governments to enforce its prohibitions.

Nor is the Michigan decision a lonely outlier. In reported decisions from California and Arizona, courts similarly have expressly rejected federal preemption challenges to their states’ medical marijuana laws.

In 2012, Connecticut became one of what now are 20 states (and D.C.) that authorize marijuana use either for medical or recreational purposes. The Law Tribune’s editorial board may have legitimate policy objections to that legislative choice. But the weight of authority plainly does not support the contention that Connecticut’s medical marijuana statute is preempted by federal law (let alone that its invalidity is “a certainty”). Perhaps it is the board’s members, and not those lawyers who recognize the legitimacy of a state statute that is consistent with existing federalism principles, who should assess their fidelity to the rule of law.•

David P. Atkins