Labor and Employment Law Alert: No Guidance to Employers in Supreme Court's Medical Marijuana Ruling
6/1/2005

In Gonzales v. Raich, the U.S. Supreme Court upheld the constitutionality of the federal Controlled Substances Act (the "CSA"), which, among other things, prevents the possession, purchase, or manufacture of medical marijuana. The CSA contradicts the California Compassionate Use Act, California’s medical marijuana statute, which attempts to exempt authorized medical marijuana users and their caretakers from criminal liability for their marijuana use. Oregon and Washington and nine other states have similar laws.

Under the Commerce Clause, Article 1, section 8 of the U.S. Constitution, Congress has the power to "regulate Commerce . . . among the several States’." The six-Justice majority held that growing or using marijuana completely within a single state has a substantial effect on the national market for marijuana and thus has the requisite tie to interstate commerce to justify the CSA. On the other hand, the three dissenters argued that growing and using marijuana intrastate for personal, medicinal use has no ties to interstate commerce and thus falls directly under the power of the individual states to regulate the health, safety, and welfare of its citizenry. While the arguments for and against Congress’ authority to regulate the criminality of marijuana is of significant interest to constitutional scholars attempting to understand Commerce Clause jurisprudence, there is little practical guidance for employers on how to address medical marijuana users in the workplace.

The holding in Raich has an enormous impact on medical marijuana users, who are clearly vulnerable under federal law if they grow, possess, or purchase marijuana for medical purposes. However, under the Court’s very technical analysis of the Commerce Clause, it did not overturn California’s medical marijuana law as void, unconstitutional, or unenforceable. It simply held that the statute does nothing to excuse medical marijuana users from federal criminal liability. The Court’s opinion did not address the implication to employers.

In response to the Supreme Court’s decision in Raich, the Oregon Attorney General’s office issued notice Monday afternoon that it will cease granting new medical marijuana authorization cards. However, the state will continue to accept new applications, pending its final legal analysis of the impact of Raich. Until Oregon takes action, the Oregon Court of Appeals’ recent decision in Washburn v. Columbia Forest Products remains good law, and no immediate changes to employer policies are necessary or recommended. (See the February 2005 Labor and Employment Law Bulletin.)

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