Just when you thought all constitutional challenges to the enforcement of the Controlled Substances Act were six feet under, a new theory has just survived a motion to dismiss in the Northern District of California. The case is Santa Cruz v. Gonzales, Case Number C 03-01802 JF. (If someone provides me a link to the opinion, I will include it here.)

Previously the district judge had dismissed, with leave to amend, the challenger's Tenth Amendment claim on the ground they had not alleged that federal enforcement required the states to alter their medical cannabis statutes or enforcement regime. But this week it accepted the theory of the plaintiff's amended complaint as potentially stating a cause of action:

In their [Second Amended Complaint], Plaintiffs allege that federal officials have devised a strategic plan of targeted enforcement that has had the intended effect of "rendering California's medical marijuana laws impossible to implement and thereby forcing California and its political subdivisions to recriminalize medial marijuana." Specifically, Plaintiffs allege that Defendants have: (1) threatened to punish California physicians who recommend marijuana; (2) threatened government officials who issue medical marijuana identification cards; (3) interfered with municipal zoning plans; and (4) targeted for arrest and prosecution those providers of medical marijuana who cooperate most closely with municipalities. Plaintiffs assert that these actions violate the Tenth Amendment by making it impossible for the state to distinguish between authorized and recreational users of marijuana, a distinction that is necessary for the proper enforcement of California law. [citations to amended complaint omitted]

To my knowledge this particular Tenth Amendment theory has not been previously adjudicated, and it is distinct from the federal government simply enforcing its own laws, while leaving the states to enforce theirs. Here is how the trial judge evaluates this claim:

In his concurring opinion in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), Chief Judge Kozinski opined that Defendants' manner of enforcing the CSA had commandeered California's legislative process, at least as to the legal rights and obligations of physicians:

The state relies on the recommendation of a state-licensed physician to define the line between legal and illegal marijuana use. The federal government's policy deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law. Normally, of course, this would not be a problem, because where state and federal law collide, federal law wins. . . .
. . . Applied to our situation, this means that, much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so. Yet the effect of the federal government's policy is precisely that: By precluding doctors, on pain of losing their DEA registration, from making a recommendation that would legalize the patients' conduct under state law, the federal policy makes it impossible for the state to exempt the use of medical marijuana from the operation of its drug laws. In effect, the federal government is forcing the state to keep medical marijuana illegal. But preventing the state from repealing an existing law is no different from forcing it to pass a new one; in either case the state is being forced to regulate conduct that it prefers unregulated. Id. at 645-46 (Kozinski, concurring).

While this authority is not controlling, it is the only authority that addresses the precise issue at hand, and it suggests that at least at the pleading stage Plaintiffs' claim may be cognizable. If Plaintiffs can prove that Defendants are enforcing the CSA in the manner alleged, a question as to which the Court expresses no opinion, they may be able to show that Defendants deliberately are seeking to frustrate the state's ability to determine whether an individual's use of marijuana is permissible under California law. A working system of recommendations, identification cards and medicinal providers is essential to the administration of California's medical marijuana law. The effect of a concerted effort to disrupt that system at least arguably would be to require state officials to enforce the terms of the CSA. Because the Court must assume that Plaintiffs' allegations are true and resolve any doubt in Plaintiffs' favor for the purposes of the instant motion, and because Plaintiffs have alleged their claim with considerably greater factual specificity than they did in their First Amended Complaint, the motion to dismiss will be denied as to Plaintiffs' third claim. [emphasis added]

At this point ANY constitutional victory on behalf of federalism OR medical cannabis--even one as small as surviving a motion to dismiss--is a BIG victory. Should this claim of deliberate obstruction of state law making and enforcement survive, some of the more conservative Justices may find it more appealing than a Commerce Clause challenge, precisely because it's practical impact would be confined. And, at best, the Supreme Court has preferred symbolic rulings favoring federalism over anything more radical in its implications. This sort of theory may just be narrow and symbolic enough to be accepted.