Ninth Circuit Sides With HUD in Medical Marijuana Conflict of Law

The 9th Circuit clarified the steps necessary to challenge marijuana classifications under federal law that conflict with classifications under state law. Emma Nation sued the Department of Housing and Urban Development (HUD) after HUD required all leases of federal government-subsidized housing to ban tenant use of medical marijuana despite California law allowing for limited use exceptions in leased spaces. In the associated memorandum opinion, the court held that where state and federal law clashed over drug classification, an aggrieved party must petition the Drug Enforcement Administration (DEA) for reclassification prior to seeking judicial review.

The Quality Housing and Work Responsibility Act of 1998 (QHWRA) requires HUD to include in all leases for assisted housing a provision requiring the landlord “to terminate the tenancy or assistance for any household with a member [who] is illegally using a controlled substance” as defined by the Controlled Substances Act (CSA). The CSA criminalizes all marijuana use or possession, with no exception for medicinal use. In contrast, California’s Compassionate Use Act of 1996 decriminalizes said use or possession when approved by a physician for the treatment of diseases such as cancer, anorexia, glaucoma, migraines, AIDS, chronic pain or arthritis.

The 9th Circuit recognized the conflict of laws but nonetheless dismissed Nation’s claim after Nation failed to allege “that she exhausted the available administrative process provided for in the CSA.” The court determined that the CSA required Nation to receive an adverse reclassification decision before seeking judicial review. Nation, who claimed the conflicts of state/federal drug classifications violated the Constitution’s 10th Amendment’s promise of the reservation of certain powers to the states, also asserted that the DEA requirement violated Marbury v. Madison, as only courts could determine whether a law passed constitutional muster.

The court ultimately ruled that Nation’s assertions lacked legal teeth as all Marbury requires is judicial review at some point in the administrative review process. The circuit panel concluded by stating that the CSA met this requirement by allowing for appellate review after a DEA adverse reclassification determination and affirmed the lower court’s decision to dismiss Nation’s constitutional claims.