Is medical marijuana legal?
Medical marijuana is illegal under federal law. The federal government criminalizes all marijuana possession regardless of the need for medical use. So that means if a patient, a medical marijuana patient who has been duly recommended the marijuana by their doctor has just one marijuana cigarette, the person can go to federal prison. Because federal law makes no exception for medical use of marijuana whatsoever. The catch is, that our democracy and the way our constitution has set up the states in this system of government we have, allows the states to actually make their own laws. They serve as laboratories of democracy as Justice Brandeis once said. And in that role, the federal government is actually allowed states on health and justice policies to have a very broad latitude in terms of deciding their own policies and initiatives on health and justice matters. In fact, it is so broad that it says unless a state law positively conflicts with the federal law to the extent that both can not stand consistently together, then the state law will stand. And so of course, while we do have this situation where marijuana is illegal under federal law, we now have thirteen states that actually allow medical marijuana. They allow patients to be recommended medical marijuana by their doctors, by the physicians. And in some cases it even allows for the patient to get the marijuana through a dispensary or some sort of clinic. So it is because of our wonderful system of constitutional democracy which allows the states to have broad latitude in this particular case, to decide its own policy. Many people ask why marijuana is allowed to be legal under state law but not under federal law? If it is illegal under federal law, how is it possible that it could be legal under state law? It is because of this word that most law students fear called pre-emption. And there are two different types of pre-emption basically. One that gives states a lot of latitude. And one that actually causes the state laws to be forestalled if they are inconsistent with the federal law. In the case of the controlled substances act, which is the law governing marijuana at the federal level, that law, the controlled substances act has a very broad pre-emption provision attached to it. Which is what allows all this experimentation on the state level to occur.
