The leaked opinion overturning Roe, combined with a largely unknown workers’ compensation case pending before the Supreme Court, reveal the Biden administration’s position on cannabis: The Biden administration doesn’t care about cannabis issues. Or is it that the Biden administration cares so much about cannabis issues to leave them in the hands of the current judiciary? Or something in the middle?
The Immediate Future of Roe
Regardless of your opinion on the correctness or wisdom of Roe v. Wade, the possibility that it may be overturned as reflected in the recently leaked opinion represents a potential sea change in the Court’s jurisprudence. It further represents the current Court’s willingness to take strong and decisive opinions on matters of broad political and cultural significance.
Cannabis is certainly one of those issues that sits at the intersection of law and order, popular opinion, and individual liberty.
So, what does Roe have to do with the Biden administration’s approach to cannabis? Stay with us: In the words of Andy Dufresne, if you’ve come this far, maybe you’re willing to come a little further.
Why are you reading about a workers’ compensation case?
This Spring the Court has received briefing in a case presenting the question of whether the Controlled Substances Act (CSA) preempts an order under a Minnesota workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury. Specifically, the petitioner, Daniel Bierbach, sustained a work-related injury that required surgery and physical therapy. Bierbach was certified as suffering from intractable pain, which is a qualifying medical condition under Minnesota’s Cannabis Act. Bierbach subsequently purchased marijuana in accordance with the act and sought reimbursement from his employer. After the company refused the reimbursement on both state law and federal-preemption grounds, a state workers’ compensation judge held an evidentiary hearing and sided with Bierbach. The Minnesota Supreme Court reversed, holding that the federal CSA preempted state law. Bierbach petitioned the Supreme Court for review of the decision.
The Court invited the solicitor general of the United States to express an opinion on the question presented. In that brief, the solicitor general argued against granting Bierbach’s petition, relying largely upon the doctrine of obstacle preemption. Obstacle preemption comes into play when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” an inquiry which requires courts both to assess congressional intent with the presumption that Congress generally intends to leave state laws undisturbed. The solicitor general focused on the fact that “Congress’s classification of marijuana as a Schedule I controlled substance ‘reflects a determination * * * that marijuana has no currently accepted medical use’” and that Congress has yet to change that classification. The solicitor general concluded that the Minnesota Supreme Court’s decision was “correct for the straightforward reason that when a federal law such as the CSA prohibits possession of a particular item, it preempts a state law requiring a private party to subsidize the purchase of…
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