Two court cases, one criminal and one civil, are challenging Connecticut’s legal cannabis program on Constitutional grounds.
At the heart of both arguments is the so-called supremacy doctrine, which stipulates that when state and federal laws are in conflict, federal law takes precedence.
“The Constitution and laws passed by Congress and treaties are the law of the land and states are bound by them,” Quinnipiac University law professor William Dunlap explained.
In both a lawsuit filed by Stamford residents against the city’s zoning board, and criminal charges against a Hamden man accused of running illegal cannabis “gifting” parties, lawyers have argued that the state cannot legalize and regulate cannabis, since it’s still illegal at the federal level.
“If the DOJ tomorrow wanted to walk into every dispensary in America and shut it down and seize all the assets, they could do it,” said attorney David Herz, who is representing the Stamford Neighborhoods Coalition, which sued the city zoning board for changing the rules to allow for legal cannabis sales.
In the criminal case, Joseph Accettullo and Cody Roberts have been charged with running illegal “cannabis gifting parties” in Hamden. The state, in its complaint against the so-called “HighBazaar,” alleges that an investigator purchased cannabis “with advertising on its packaging that exceeded the maximum amount of total THC permissible under Connecticut law” and “was not cultivated or produced in facilities licensed by the Department of Consumer Protection.”
Attorney Alex Taubes argues in a court filing that complying with state law would have forced his clients to “run afoul of federal law.”
“To comply with state law in these ways would mandate them to violate federal law, specifically the Controlled Substances Act,” Taubes said during a recent interview. “Because federal law is the law of the land and always rules above state law, the state law in this case is preempted and should be struck down.”
“Anytime when a state law, quote, ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, the state law has to give way,’” particularly when “it is physically impossible to comply with both state and federal law,” Taubes said, quoting the U.S. Supreme Court’s decision in the 1984 Michigan Canners Freezers case. “Basically what it means is that all of Connecticut’s legalization could be ruled unconstitutional.”
Elizabeth Benton, spokesperson for state Attorney General William Tong’s office said, “We are very confident in our case and will respond in court.”
Connecticut legalized cannabis for recreational use in 2021 and allowed the first recreational cannabis retail outlets to open Jan. 9, 2023.
Herz’s argument was dismissed, as he explained, because there was no specific grievance. His clients were not personally adversely affected by the sale of cannabis in the state, the court said,
“This isn’t about an actual dispensary that’s being put up next to someone’s house that you can bring the person and say, ‘There’s a dispensary going up next to my house. It’s going to have an effect on my property, therefore, I have a grievance,” Herz said.
Neither the state nor the court has replied to Taubes’ argument, and though Dunlap said he’s “never seen preemption used in this particular way before,” he believes “the defendants here have an interesting argument.”
The problem, Dunlap said, is that the court may attempt to discern Congress’ intentions on the legalization of cannabis.
The National Association of Attorneys General explains on its website that it often comes down to policy. Sometimes, “state laws are held preempted by courts because it is impossible to comply with both a federal and state law or because the state law frustrates accomplishment of the federal law’s objectives,” the website says. “Whether a federal statute should expressly preempt state laws is a complicated policy question that is resolved in the halls of Congress.”
Dunlap said Congress’ intentions may be difficult if not impossible to discern. Cannabis remains federally illegal but many states, including Connecticut, have legalized cannabis and Congress has done nothing to stop them.
“If the court looks at this very narrowly, and looks at Congress’s intent at the time that the federal law was passed, you might get one answer,” Dunlap said. “But if it looks at the implications of Congress’s position right now, it could get a very different answer, because they’re doing it and Congress isn’t batting an eyelash, as far as I know.”
“As it stands right now, it is utterly illegal. Congress is not making any moves that I know of, to change that, and that’s likely to stay the same for the foreseeable future,” he said, and it’s certainly not going to change while this particular case is still going on.”
When asked if Taubes’ argument might convince a judge, Dunlap said it’s possible, but unlikely.
“The individual arguments that they make have some merit, but I can think of a response to every one of them,” he said. “So, I don’t think it’s necessarily crazy, but I don’t think it’s likely to prevail.”
H/T: www.stamfordadvocate.com
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