Judge O’Scannlain, writing for a 9th Circuit panel in U.S. v. McIntosh, concluded that a appropriations rider prohibited DOJ from spending any money to enforce the Controlled Substances Act “to prevent [various] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” As a result, the court dismissed prosecutions as violations of the appropriations clause.

I don’t have any thoughts on the construction of the omnibus budget, but there is one dictum in Judge O’Scannlain’s opinion that is not exactly correct. Footnote 5 on the final page of the opinion states:

Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.

The final quoted sentence is absolutely correct. Under Gonzales v. Raich, possession of a controlled remains prohibited by federal law, regardless of what the state law enacts. Justice Stevens explained in Raich:

The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.

However, the Supremacy Clause does not require California, or any other state, to enact laws criminalizing marijuana. In fact, such a mandate would amount to unlawful commandeering. California remains free to either not criminalize marijuana, or in fact authorize its possession. Utilizing its own resources, it can direct its state officers not to prosecute anyone for possession. If the federal government doesn’t like that, it can DOJ agents into California to arrest people for possession of marijuana that is legal under state law. This is precisely what happened to Angel Raich.

So this sentence, “Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits,” is not complete. This sentiment only becomes relevant if a defendant raises the state law as a defense to a federal marijuana prosecution. At that point, the federal court would cite the Supremacy Clause, and hold that the state law is preempted. Or DOJ could sue to block the enforcement of the law (like in Arizona v. United States), arguing that it is interfering with federal priorities. But a state is well within its own power to have a law on the books legalizing marijuana, not expend its own resources to criminalize marijuana, and hope the federal government doesn’t waste its time doing the same.

I’ve blogged about this misconception concerning the supremacy clause in the context of a Colorado employee who was fired for marijuana use, even though it was legal under state law. (The opinion was authored by one of the Trump short-listers, Justice Eid).