Colorado Medical Marijuana Dispensaries: Will MMDs Survive Federal Prohibition?

Earlier this week, Federal drug enforcement agents raided a Denver lab that does potency testing for dispensaries. The lab is also designated as a caregiver for several medical-marijuana patients in the state. While a number of medical-marijuana samples were taken, there is apparently an ongoing investigation despite neither confirmation nor denial by the Feds. Such an action is raising a maelstrom among medical-pot advocates who are relying on U.S. Attorney General Eric Holder’s assurances that federal agents would not interfere with medical dispensaries that complied with state marijuana laws.
 

Puzzling individuals on both sides of the debate, surrounds the emergence of medical-marijuana dispensaries and whether or not they will survive federal prohibitions under the Controlled Substances Act which makes pot illegal as a Schedule I drug – a law that has drawn much criticism from the pot-advocate community as being without rational merit yet posing severe indifference toward patients whom, they claim, benefit from medical-marijuana treatment.

A big legal question for many, then, is “How will medical-marijuana dispensaries, in what are a state permitted business and a form of intrastate commerce, past muster if a legal battle ensues between Colorado (and states with similar laws on their books) and the Federal Government?” If the Feds change their position and begin to enforce federal law so as to close down the dispensaries, a major piece of litigation will very likely ignite thus to test the viability of state medical-marijuana laws versus the Controlled Substances Act. As long as the federal law is not amended, the illegality of medical-marijuana on the federal level will continue to persist.

A starting point in answering this question is to look at the uniqueness of Colorado law which protects medical-marijuana through the State Constitution, Amendment 20. Unlike other states, this amendment sets Colorado law apart in that ‘the People’ have chosen by referendum to allow for the use of marijuana as medicine within its borders. The result is legal protection for “businesses” to engage in the practice of selling medical-pot, but with limits: “Amendment 20 authorizes a patient or a primary caregiver who has been issued a Medical Marijuana Registry identification card to possess no more than two ounces of a usable form of marijuana and not more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.” (See also 0-4-287 - ARTICLE XVIII - Miscellaneous Art. XVIII – Miscellaneous)

Measures are now being seriously reviewed by both local and Colorado state lawmakers to regulate medical-marijuana dispensaries, and the moratorium on license applications in Fort Collins will soon be lifted. Can medical-marijuana advocates and owner-caregivers of dispensaries reasonably rely on the Feds to stay out of their businesses indefinitely? There is no telling how federal preemption could override state law, particularly Colorado’s. Yet, given the ambiguity of the U.S. Congress’s intent to regulate the entire field of medical-marijuana, the state is not necessarily powerless to enact subsequent legislation even if no conflict exists between state and federal law. The federal government, though, has greatly regulated both legal and illegal drugs. Medical-pot advocates could therefore assert that “extensive federal regulation in a particular area does not necessarily result in federal preemption of the field.” Consequently, the Feds would have to demonstrate how state law regulating the “pot trade” results in disruptions of, or substantially impacts, interstate commerce. If, on the other hand, the state is regulating its own commerce and there is a compelling state interest to protect, then the state regulations may be deemed constitutional.

The fact that Colorado is presumed to regulate commerce within its borders respecting medical-marijuana and the ancillary “pot-trade” begs the questions as to how federal intervention could put a freeze on intrastate trade until resolution is reached in the courts – that is, if such intervention were to ever occur. The federal raid in Denver does, however, raise some fears for the medical-pot community and those who have invested in their businesses as well as the patients relying on their caregivers. In Fort Collins alone the number of dispensaries has climbed to well over 100. This represents a significant amount of trade just here in Larimer County. While law makers in the state formulate a regulatory system for this growing industry, it is yet to be seen what kind of meaningful federal responses will take place. Enforcing the prohibition will unsurprisingly be countered with a fierce legal response, if not by the attorneys for the dispensaries and patients then by the state itself to protect its right to regulate commerce within its borders.