The Colorado Supreme Court, per Justice Eid, issued a decision in Coats v. Dish Network, holding that “employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law” can be terminated at will. While I do not have any insights into the proper construction of “lawful” under state law, the court did weigh in on the interaction of federal and state law with respect to marijuana:
Coats does not dispute that the federal Controlled Substances Act prohibits medical marijuana use. See 21 U.S.C. § 844(a). The CSA lists marijuana as a Schedule I substance, meaning federal law designates it as having no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision. Id. at § 812(b)(1)(A)–(C). This makes the use, possession, or manufacture of marijuana a federal criminal offense, except where used for federally-approved research projects. Id. at § 844(a); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005). There is no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law. 21 U.S.C. § 844(a); see also Gonzales, 545 U.S. at 29 (finding that “[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail,” including in the area of marijuana regulation).2 Coats’s use of medical marijuana was unlawful under federal law and thus not protected by section 24-34-402.5.
While this very well may follow under the Colorado Supreme Court’s analysis of state law, it need not follow under federal law. Nothing in Gonzales v. Raich says that a state is required to prohibit an activity that is illegal under federal law. Such a holding would amount to commandeering and intrusion into state sovereignty. The citation to the Supremacy Clause is on point, only insofar as a plaintiff tries to raise state law as a defense to a federal prosecution. But, there is nothing wrong with Colorado legalizing marijuana, and deeming it “lawful” under state employment law, while federal law does not.
Update: Earlier this year I blogged about an Oregon case that went in the opposite direction:
In 2011, the Oregon Supreme Court held that under the state’s “shall issue” law, a person who held a medicinal marijuana license could not be denied a permit (see here,here). The court rejected arguments that 922(g) preempted the state law. In short, while the state cannot deny a permit, federal officials remain able to enforce federal law.
A marijuana user’s possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials. …
But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.
The Sheriffs specifically cite Printz and the commandeering cases for the proposition that the states cannot be forced to implement federal law. The court rejects this argument.
In other words, the real thrust of the sheriffs’ argument appears to be that the state’s choice not to use its gun licensing mechanism to enforce the federal policy is preempted, even though the federal law that the sheriffs rely on does not in any way mandate the use of state gun licensing schemes in any particular way. One obvious problem with that position is that it presumes that Congress has authority that, in fact, it does not have. It is well established that the federal government lacks constitutional authority to commandeer the policy-making or enforcement apparatus of the states by requiring them to enact or enforce a federal regulatory program. Printz v. United States, 521 US 898, 925-31, 117 S Ct 2365, 138 L Ed 2d 914 (1997); New York v. United States, 505 US 144, 161-69, 112 S Ct 2408, 120 L Ed 2d 120 (1992). Although the United States Constitution establishes the supremacy of the federal government in most respects, it reserves to the states certain powers that are at the core of state sovereignty. New York, 505 US at 156-61. One expression of that reservation of powers is the notion that Congress lacks authority “to require the states to govern according to Congress’s instructions.” Id. at 162.(8)
It follows from that “anti-commandeering” principle that Congress lacks authority to require the states to use their gun licensing mechanisms to advance a particular federal purpose. If Congress lacks the constitutional authority to commandeer the state gun licensing statutes in that fashion, then we can hardly imply an intent to commandeer state gun licensing laws from a federal statute that does not even mention them. Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state’s decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.
Brian Doherty quotes from an Oregon Appeals Court decision that states the issue more clearly:
As an Oregon appeals court declared in one iteration of Willis v. Winters as it moved through the state’s court system, and as the Oregon Supreme Court upheld, the “circuit court correctly concluded that Oregon’s concealed handgun licensing statutes are not preempted by the federal Gun Control Act. The concealed handgun licensing statutes do not affirmatively authorize controlled substance users to possess handguns; rather, they exempt a licensee from state criminal liability for the possession of a concealed handgun.”
The state petitioned for cert, based on preemption theory, asking ” Is the state law preempted to the extent it requires issuance of a license to a person who is otherwise comprehensively prohibited under federal law from possessing or acquiring a firearm by any means?” The Supreme Court denied cert.