WA Attorney General files brief in case raising federal preemption

Although the Obama administration decided not to pursue a preemption challenge to Colorado and Washington's legalization laws, private parties and/or local officials can also raise the federal preemption issue in the right case.  In Washington, a local ban on marijuana stores has prompted a lawsuit that looks likely to do just that.

The Seattle Times provides a summary of the dispute:

In July, the city of Fife approved an outright ban on marijuana businesses. A prospective pot store is suing the city in Pierce County Superior Court and hopes to overturn the ban.

 

The case could cement Washington’s pot law or unravel it, depending on the success of arguments from the State Attorney General’s office and the ACLU, who have both intervened in the lawsuit.

 

There are two key issues in the case: whether Fife and other municipalities are allowed to ban marijuana businesses under Initiative 502, the state law that legalized pot, and whether federal law banning pot trumps state law on the issue.

Yesterday, the Washington AG filed a brief in the case (PDF), which appears to be at the summary judgment stage.  In it, the AG argues that Fife's ban on marijuana businesses is not preempted by the state's legalization law.  If the court agrees with the AG on that point, then it won't need to reach the question of federal preemption.  If it disagrees, however, then it will have to decide whether or not federal law preempts the state's law.  

Here is the beginning of the AG's argument on federal preemption:

Because Congress made clear that it only intended to preempt state laws that create a “positive conflict” with the CSA, id., Congress did not “occupy the field” of regulating controlled substances. Field preemption is thus inapplicable under the CSA. Express preemption also effectively becomes irrelevant because it overlaps completely with conflict preemption here, i.e., the statute expressly preempts only state laws that create a “positive conflict.” See, e.g., County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d 461, 476 (Cal. Ct. App. 2008) (“numerous courts have concluded[] that . . . 21 U.S.C. § 903[] demonstrates Congress intended to reject express and field preemption of state laws concerning controlled substances”) (copy attached). Moreover, as to conflict preemption, because the statute limits preemption to state laws where “there is a positive conflict between . . . [the CSA] and that State law so that the two cannot consistently stand together,” 21 U.S.C. § 903, many courts have held that obstacle preemption is irrelevant under the CSA, because the only form of conflict the CSA is concerned with “is a positive conflict,” id. See, e.g., San Diego NORML, 81 Cal. Rptr. 3d at 481; People v. Crouse, ___ P.3d ___, 2013 WL 6673708, at *4 (Colo. Ct. App. Dec. 19, 2013) (same) (copy attached). Indeed, other federal statutes specify that both impossibility and obstacle preemption apply, demonstrating that Congress knows how to write such a clause if that is its intent. See, e.g., 21 U.S.C. § 350e(e). 

I think the federal preemption argument is a weak one (I suspect that's a big part of why the federal government has never once brought a preemption lawsuit against a state medical marijuana law, even under Bush when there was no doubt about the DOJ's opposition to these laws.)  But, this will certainly be a case to watch closely. The ACLU's page monitoring the case is here.