Federal Law Matters in ME Also

In the beginning, there were people who inhabited North America. The fallacy of Columbus "discovering" the new world, and the debate of whether the "vikings" may have "discovered it first" is patent. Certainly, someone was the first to human in the "new world," but it was neither of these. Recently, National Geographic detailed the evidence of sophisticated society here when the Spanish arrived, and there is archaeological evidence of society here thousands of years ago. But, the euro-centrists taught us in school to celebrate Columbus who sailed that ocean blue in 1492; rubbish.

We can, individually and collectively, become indoctrinated, by the press, our schools, our leaders, and our peers. A great illustration of this is an idiot of an emperor whose hubris was so pervasive he allowed himself to be conned by some charlatans into purchasing clothes that did not exist. It is a children's tale by Hans Christian Anderson. It is a parable and it teaches. It's moral lies in one child who speaks his mind and notes that the emperor has no new clothes, but is riding about town naked. 

Marijuana is back in the news. Or, if you prefer, pot, weed, dope, reefer, or cannabis. It is back in the news because the Supreme Court of Maine concluded that their is a hierarchy of law in the United States. It essentially recognized that in the beginning, there were colonists who landed here. They had conflicts with the natives, fought competing colonists from other European powers, and then revolted against their own king. After that war for independence, the Constitution of the United States was drafted and ratified by the states. It is the bedrock of our nation, a recognition of our rights, a tribute to the power of the people, and should be respected.  

The Constitution grants power to the United States Government. That power was granted by the states and the people who had just earned their independence. And, those people made the federal government supreme, the federal law supreme. Article VI of the Constitution says so, clearly and succinctly:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

I periodically run across someone lecturing at a conference or spouting on social media about how many states in which marijuana is "legal." The answer to that question is zero. Certainly, state legislatures have removed their state law prohibitions on possession and use. But, marijuana is illegal according to the laws of the United States, "any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." See Medical Marijuana, and So Federal Law Matters in Colorado. 

Maine recognized that recently in Bourgoin v. Twin Rivers Paper, 2018 ME 77 (June 14, 2018). Procedurally, a workers' compensation judge in Maine had heard a claim in which an injured worker sought to have the employer ordered to pay for him to have marijuana. This was not a new phenomenon, there have been such orders entered in at least seven states. The courts in seven of the United States have ordered employers to violate federal law and provide pot to injured workers ("Judges in every State shall be bound"). A great many in the workers' compensation community have expressed surprise at those rulings, but many more find some logic with which to justify and accept those decisions. They ignore the law, and our construct of Federalism, and resort to their personal perceptions, feelings, and conclusions about pot.

It bears noting that no American doctor prescribes pot. Even in the setting in which they insist that it is "medicinal," no doctor will write a prescription. Physicians may "recommend" it, but will not prescribe it. That, in itself is a harbinger. The doctors will not prescribe it because doing so could get them into trouble with the Federal Government, which regulates the distribution of controlled substances. Prescribing could result in federal sanction, so recommend it they do instead. The doctors know it is illegal.

In at least one of those cases in which an employer was ordered to violate federal law, the basis was not medical evidence of efficacy. It was not scientific proof that the pot would provide relief or respite or cure. In at least one of those cases, the patient merely said he felt better when he smoked dope, the doctor recommended on that alone that the patient continue to smoke dope, and a judge (a legal officer sworn to uphold the Constitution and the laws of the United States) ordered an employer to reimburse the employee for up to two pounds of dope each year. If you are unfamiliar with pot, that is quiet a lot of pot.

We do not know what the effects of weed will be. I touched on that in What will the next Thirty Years Teach Us, where the New Mexico situation is discussed at length. Thirty years ago, the workers' compensation community drank the Kool Aid regarding opioids, and the narcotics flowed like candy in the Wonka factory. And, people were damaged. They became addicted, they decompensated, they acclimated to dosages, and a fair few died. The community was seemingly lied to or mislead into Opioids. There is consensus today on that, regret, anger, and more. But the same community now seemingly rushes headlong for weed. Not because of science, not based on medical evidence, but because some find it makes them feel better. 

Comedian Ron White was arrested for marijuana possession in Florida some years back; he had less than a gram. He joked "when I have seven-eighths of a gram of marijuana, I consider myself to be out of marijuana." He explained that he has a "medical marijuana" card issued in California. Asked for what condition, he explains it is for depression. He explains that his doctor asked what depressed him, and he explained he becomes depressed when he runs out of marijuana. A funny and circular logic comedy routine, but a great illustration of the logic used by the New Mexico courts to order the employer there to violate United States law. If the patient says it makes her/him feel better, then does logic dictate that the employer should be ordered to provide it?  

The Maine judge and workers' compensation board, both sworn to uphold the laws of the United States ordered Twin Rivers Paper to violate federal law. The employer sought review by the Supreme Court of Maine. The Court explained that 

"state laws, such as the MMUMA, provide safe harbor from state prosecution, but do not—and cannot—create a 'state right to commit a federal crime,' meaning that the state law protections have no bearing on federal criminalization or exposure to federal prosecution for that conduct."

There is no "State right to commit a federal crime." A corollary hypothetical might illustrate. Maine law prohibits kidnapping. See Title 17A, Maine Criminal Code. If Maine concluded that there is no real harm in kidnapping (it might make someone "feel better"), and decriminalized it, kidnapping would nonetheless still be illegal. See 18 U.S. Code § 1201. Imagine that occurred. Imagine further that someone thereafter seized me, locked me in the trunk of my rental car at Augusta airport, and demanded a ransom for my return. Following some crack police work, I am released and the perpetrator is arrested. Would anyone imagine that the person would not be prosecuted because kidnapping has been decriminalized in Maine? Perhaps a reader will comment and endorse that analysis. But, I doubt it. Likely everyone will agree that the kidnapper would still be prosecuted under federal law.

But, in this hypothetical kidnapping is not illegal in Maine. Using the marijuana advocate argument, kidnapping is "legal" in Maine. What if we extended the hypothetical a bit further. What if the kidnapper testified that putting people in car trunks and demanding ransom makes the kidnapper "feel better?" What if the kidnapper had a "recommendation" from a doctor that "if locking people in trunks and demanding ransom makes the patient feel better, I recommend it." Might the employer be ordered to aid and assist the kidnapper in finding and abducting victims? Certainly, this is preposterous.  

No one will conclude this is appropriate. But, they will try to tell you dope is different from kidnapping. But, when I have pressed that comparison with audiences, no one has provided either logic or law in their defense of their perceived distinctions. Every time I raise this comparison, the reefer advocates resort to their "it makes him feel better" argument and their "he's not hurting anyone like a kidnapper" distinctions. They resort to feelings and emotions, sympathy and anecdotal "success" stories. They can never address the simple fact that the stuff is illegal.  

Though I have never used any, I suspect people do not use crystal meth because it makes them feel bad. I presume the same for bath salts, LSD, Heroin, and more. I suspect people use these substances because it makes them feel good. If the standard we will employ is simply whether the person that wishes to use something says they feel better, it may be a bit of a slippery slope.  

The Maine Court did not delve into the inherent conflict of a state law or constitution creating an entitlement to weed. That "broad" analysis was not required. Instead, it merely addressed the facts of the case before it and concluded that any such "right" to personally blow dope under state law could not be converted to a "sword" to allow that drug user to make someone else pay for their illegal cannabis. The Court is quite persuasive in this regard. In this regard, the conclusion is not dissimilar to Coates v. Dish Network (Colorado Supreme Court), discussed in Federal Law Matters in Colorado.  

An interesting legal debate is similarly playing out in Florida. Floridians passed an amendment to the Florida Constitution decriminalizing the use of cannabis for medicinal purposes. But, the Florida Department of Health, in implementing that change, has continued to prohibit the smoking of cannabis. The non-criminalized (under state law) uses do not currently include smoking. As an aside, there are those who assert that the "high- producing" elements of weed are not part of the experience with cannabis oils and other cannabis derivatives. Some claim the desire to smoke it is driven in some part by a desire for that "high." Others argue that the desire to smoke it is merely one of personal choice, which they contend the Florida Constitution provides them. It is a loud and sometimes raucous debate. 

Recently, a Florida trial court judge (sworn to uphold the United States Constitution) concluded that in Florida it is unconstitutional to preclude people from smoking an illegal (under federal law, see Article VI above) substance. That sentence will throw a few off and cause some head scratching for sure. As I described that logic in a recent speech, I was reminded of Austin Powers' (Mike Myers') time travel bit that makes him cross-eyed, too funny. According to the Orlando Sentinel, Judge Karen Gievers held 

Floridians “have the right to use the form of medical marijuana for treatment of their debilitating medical conditions as recommended by their certified physicians, including the use of smokeable marijuana in private places.” 

Note the "recommended" and not "prescribed?" Notice that it is a "right" to use federally illegal substances? In other words, precluding Floridians from smoking a substance illegal in all 50 states violates the Florida constitution. That decision was very recent and is now pending before the Florida First District Court of Appeal. Judge Gievers was, coincidentally, the judge that concluded the workers' compensation rate making process was not appropriate. That decision was reversed as described in a blog post in May 2017.  

The United States government gained its power and authority from the states and the people. By its own ratified terms, the Constitution and laws passed there under are the law of the land. By that federal law, marijuana is illegal. It is illegal in all 50 states and nothing that any state or local government or official can do will change that. Two state supreme courts have now so concluded (those surprised by Bourgoin likely either did not read Coates, did not understand Coates, or forgot Coates). In fact, those various state and local officials, and judges, that break federal law are a curiosity. Sworn to uphold the laws of the United States, some state officials and officers actually advocate violating federal law, not changing federal law, violating it. 

That is worthy of discussion. There are many avenues for changing federal law. If there is reason for legalization of weed, then the place for that debate is in the halls of Congress. There, the evidence of any efficacy or danger of cannabis can be debated and discussed. Congress can elect to legalize weed, could elect to withdraw federal controls leaving the legalization debate to the states, or could conclude that it believes kidnapping to be wrong regardless of whether it makes kidnappers "feel" better. But, that debate is of policy and is for the policymakers.

Maybe the "pot is bad" is as fallacious as the "ocean blue" which we were all taught? But, this should not be a debate centered on ignoring the U.S. Constitution, the Supremacy Clause, and the federal laws duly enacted. If we reach the point that people may violate federal law because it makes them feel good, with or without the permission of a state government, then we are in a perilous state. If pot is good, then the Congress is the place for change in the pot policy.

And, like the fair townsfolk in the Hans Anderson story, a great many may line the streets and enjoy the parade that is "legal" weed. They will periodically find themselves shocked and dismayed, as they were recently in Bourgoin, that someone points out, reminds, that this emperor has no clothes, that dope is still illegal. As such, at least in Maine, a state agency or official cannot order someone to break federal law any more than a worker in Colorado can claim discrimination when a business follows federal law.  

Disagree with the logic, or the entire post, if you like. But I wrote it on my doctor's recommendation, and I do feel much better now.

ABOUT THE AUTHOR

David Langham is the Florida Deputy Chief Judge of Compensation Claims. He blogs weekly regarding system issues, regulations and decisions. He has published many articles and delivered more than 1,000 professional speeches.

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