The growing number of states that have legalized medical marijuana in recent years raises many interesting legal issues. Among these issues is the tension, sometimes outright conflict between state and federal laws regarding marijuana. In the case of medical marijuana, the states' have carved out a variety of legal exceptions to prohibitions on the cultivation, possession, transportation, distribution, and use of cannabis. These state-level reforms have potential widespread impact because state officials, not federal officials, undertake the overwhelming majority of drug-related arrests and prosecutions.

Congress has enacted federal laws controlling marijuana, most notably the Controlled Substances Act (CSA) of 1970. This law expanded federal authority to regulate drugs within the several states, based on the commerce clause of the US Constitution. Congress has authority to enact such laws so long as the subject matter bears some relationship to interstate commerce. (An open question remains whether the states can create a system of medical marijuana distribution that does not impinge on interstate commerce such that Congress and federal authorities would lack the authority to interfere.)

When federal laws and state laws conflict, federal laws are supreme and the state laws must give away. To be sure, there is a philosophical tension between the medical marijuana laws recently enacted by various states and the refusal of federal law to recognize a medical exception to its general prohibition of marijuana. Nevertheless, these state laws do not conflict with federal law: rather than attempting to alter or repudiate federal law, these laws simply prohibit state authorities from enforcing certain provisions of state civil and criminal codes.

At common law, the necessity defense-also known as the "choice of two evils” was available to those who, when confronted with a serious and immediate threat, found they could save themselves only by taking action that violated a law - for example, breaking into another's dwelling to escape an angry lynch mob. The medical necessity defense was established for marijuana in United States v. Randall when a glaucoma patient who smoked marijuana in order to retain his eyesight was found not guilty of violating anti-marijuana law by the District of Columbia Superior Court. Recognizing "the right of an individual to preserve and control [his or] her body," and observing that "the prohibition [of marijuana] is not well founded," the court concluded that "the evil [the defendant] sought to avert, blindness, is greater than that he performed to accomplish it, growing marijuana in his residence in violation of the District of Colombia Code."

As regards federal law, the 2001 decision in US v. Oakland Cannabis Buyer's Cooperative (OCBC) represents a partial setback with respect to the use of the medical necessity defense for medical marijuana advocates. In the OCBC case, the Supreme Court wrote that "a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act," and held that persons or organizations who provide medical marijuana to patients cannot assert a medical necessity defense under federal law.

Two important observations must be made about the OCBC decision. First, it must be emphasized that the Supreme Court did not address (because the case did not raise) the issue of whether seriously ill patients could avail themselves of a federal medical necessity defense if charged with violating federal marijuana laws. Second, it must be noted that the OCBC decision only addresses the application of the medical necessity defense to medical marijuana providers under federal law. Most prosecutions for marijuana offenses occur under state law in state court and involve not providers of marijuana but the patients who use marijuana to prevent serious harm to their health and well-being. The OCBC decision does not affect the ability of state courts to recognize under state law the medical necessity defense not only for patients, but also their caregivers and medical marijuana providers.

Further Reading:

Drug Policy Alliance Brief on Federalism

California Constitution Article 3, Section 3.5, limiting power of a California administrative agency may not refuse to enforce a state law on the basis that federal law prohibits enforcement of the state law.

Federal Government's Response to California's Medical Marijuana Law

For a Very Few Patients, the U.S. Provides Medical Marijuana

Letters from Patients in the Investigational New Drug program

An ACLU Primer on the Necessity Defense

Boston Law Review article on the Medical Necessity Defense

The Oakland Cannabis Buyers' Cooperative Website has links to all legal documents pertaining to their case.