Amicus Curiae Brief — Susan K. Musta, Petitioner v. Mendota Heights Dental Center, et al.
Supreme Court briefMay 16, 2022
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Nos. 21-676 and 21-998
In the Supreme Court of the United States
SUSAN K. MUSTA, PETITIONER
v.
MENDOTA HEIGHTS DENTAL CENTER, ET AL.
DANIEL BIERBACH, PETITIONER
v.
DIGGER’S POLARIS, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE MINNESOTA SUPREME COURT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KENNETH A. POLITE, JR.
Assistant Attorney General
ERIC J. FEIGIN
Deputy Solicitor General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General
JOEL S. JOHNSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the Controlled Substances Act, 21 U.S.C.
801 et seq., preempts a state workers’ compensation
order that compels an employer to reimburse an
employee for the cost of marijuana used in response to
pain arising from a work-related injury.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement:
A. Federal law background ................................................. 1
B. State law background ...................................................... 6
C. Proceedings below ........................................................... 7
1. Musta v. Mendota Heights Dental Center,
No. 21-676 .................................................................. 7
2. Bierbach v. Digger’s Polaris, No. 21-998 ............... 8
Discussion ...................................................................................... 9
A. The judgments below are correct .................................. 9
B. This Court’s review is not warranted in these cases ... 15
Conclusion ................................................................................... 19
TABLE OF AUTHORITIES
Cases:
Appeal of Panaggio, 260 A.3d 825 (N.H. 2021) ............ 12, 18
Arizona v. United States, 567 U.S. 387 (2012) ............. 10, 15
Bourgoin v. Twin Rivers Paper Co., LLC,
187 A.3d 10 (Me. 2018)........................................................ 17
Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000).............................................................. 11
Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 16
Geier v. American Honda Motor Co.,
529 U.S. 861 (2000).............................................................. 13
Gonzales v. Oregon, 546 U.S. 243 (2006) ..................... 2, 3, 13
Gonzales v. Raich, 545 U.S. 1 (2005) ................................. 2, 5
Hager v. M&K Constr., 247 A.3d 864 (N.J. 2021) ........ 14, 18
Jennings v. Stephens, 574 U.S. 271 (2015) .......................... 16
Kansas v. Garcia, 140 S. Ct. 791 (2020) .......................... 9, 10
Maine Cmty. Health Options v. United States,
140 S. Ct. 1308 (2020) ......................................................... 15
(III)
IV
Cases—Continued:
Page
Michigan Canners & Freezers Ass’n v. Agricultural
Mktg. & Bargaining Bd., 467 U.S. 461 (1984) ................. 12
Murphy v. NCAA, 138 S. Ct. 1461 (2018) ........................... 12
Nebraska v. Colorado, 577 U.S. 1211 (2016) ....................... 18
Oneok, Inc. v. Learjet, Inc.,
575 U.S. 373 (2015).............................................. 9, 10, 12, 13
Rosemond v. United States, 572 U.S. 65 (2014) ................. 16
Sisley v. U.S. DEA, 11 F.4th 1029 (9th Cir. 2021) ............... 5
Standing Akimbo, LLC v. United States,
141 S. Ct. 2236 (2021) ........................................................... 5
State ex rel. Lance v. District Ct., 542 P.2d 1211
(Mont. 1975)......................................................................... 13
United States v. Moore, 423 U.S. 122 (1975) ...................... 13
United States v. Oakland Cannabis Buyers’ Coop.,
532 U.S. 483 (2001).................................................. 2, 3, 9, 10
United States v. Trevino, 7 F.4th 414
(6th Cir. 2021), cert. denied, 142 S. Ct. 1161 (2022)........... 4
United States Dep’t of Def. v. FLRA,
510 U.S. 487 (1994).............................................................. 15
Wright’s Case, 156 N.E.3d 161 (Mass. 2020) ................ 17, 18
Wyeth v. Levine, 555 U.S. 555 (2009) .................................. 13
Statutes and rule:
Agriculture Improvement Act of 2018,
Pub. L. No. 115-334, 132 Stat. 4490:
§ 10113, 132 Stat. 4908 ...................................................... 5
§ 12619, 132 Stat. 5018 ...................................................... 5
Commerce, Justice, Science, and Related Agencies
Appropriations Act, 2022, Pub. L. No. 117-103,
Div. B, § 531 (2022) ......................................................... 4, 14
V
Statutes and rule—Continued:
Page
Comprehensive Drug Abuse Prevention and Control
Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236:
84 Stat. 1236 ..................................................................... 13
Controlled Substances Act, Pub. L. No. 91-513,
Tit. II, 84 Stat. 1242 (21 U.S.C. 801 et seq.)........................ 1
§ 202(c), 84 Stat. 1249 ........................................................ 2
21 U.S.C. 802(16) ............................................................... 5
21 U.S.C. 811 ...................................................................... 2
21 U.S.C. 812 ...................................................................... 2
21 U.S.C. 812(b)(1)(A)-(C) ................................................ 2
21 U.S.C. 812(b)(1)(B) ....................................................... 3
21 U.S.C. 812(c) ............................................................... 11
21 U.S.C. 823(f ).................................................................. 2
21 U.S.C. 841(a)(1)............................................................. 2
21 U.S.C. 844(a) ............................................................. 2, 9
21 U.S.C. 903 .......................................................... 3, 12, 13
Federal Food, Drug, and Cosmetic Act,
21 U.S.C. 301 et seq. .............................................................. 5
Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999,
Pub. L. No. 105-277, Div. F, 112 Stat. 2681-760:
Div. F(I)-(II), 112 Stat. 2681-760 to 2681-761 ................. 4
Div. F(11), 112 Stat. 2681-761 .......................................... 3
7 U.S.C. 1639o(1) ..................................................................... 5
18 U.S.C. 2 .............................................................................. 16
18 U.S.C. 431-443 ................................................................... 11
18 U.S.C. 3282 ........................................................................ 15
Medical Cannabis Therapeutic Research Act,
Minn. Stat. §§ 152.22-152.37 (2021) ..................................... 6
§ 152.22, Subd. 14 .............................................................. 6
§ 152.23(b) .................................................................... 6, 11
VI
Statutes and rule—Continued:
Page
§ 152.27, Subd. 3(a) ............................................................ 6
§ 152.27, Subd. 6 ................................................................ 6
§ 152.29, Subd. 3 ................................................................ 6
Minn. Stat. (2021):
§ 152.01 et seq. .................................................................... 6
§ 152.02, Subd. 2(h) ........................................................... 6
§ 152.021 ............................................................................. 6
§ 152.12 ............................................................................... 6
§ 176.135, Subd. 1 .............................................................. 7
Minn. R., Pt. 5221.6040, Subpt. 7a (2015) .............................. 7
Miscellaneous:
Ending Federal Marijuana Prohibition Act of 2017,
H.R. 1227, 115th Cong., 1st Sess. (2017) ............................ 5
62 Fed. Reg. 6164 (Feb. 11, 1997) .......................................... 3
76 Fed. Reg. 40,552 (July 8, 2011).......................................... 5
81 Fed. Reg. 53,688 (Aug. 12, 2016) ....................................... 5
8 Lex K. Larson, Larson’s Workers’ Compensation
Law (rev. ed. Dec. 7, 2021) ................................................. 11
Marijuana Freedom and Opportunity Act, S. 1552,
116th Cong., 1st Sess. (2019) ............................................... 5
Marijuana 1-to-3 Act of 2021, H.R. 365, 117th Cong.,
1st Sess. (2021) ...................................................................... 5
Marijuana Opportunity Reinvestment and
Expungement Act, H.R. 3617, 117th Cong.,
2d Sess. (Apr. 4, 2022) ........................................................ 18
Marijuana Opportunity Reinvestment and
Expungement Act of 2020, H.R. 3884, 116th Cong.,
2d Sess. (2020) ....................................................................... 5
VII
Miscellaneous—Continued:
Page
Memorandum from David W. Ogden, Deputy
Att’y Gen., for Selected U.S. Attorneys, Investigations and Prosecutions in States Authorizing the
Medical Use of Marijuana (Oct. 19, 2009),
https://go.usa.gov/xu5My ..................................................... 4
Memorandum from James M. Cole, Deputy Att’y
Gen., for All U.S. Attorneys, Guidance Regarding
Marijuana Enforcement (Aug. 29, 2013),
https://go.usa.gov/xu5Mh ..................................................... 4
Memorandum from Jefferson B. Sessions, III,
Att’y Gen., for All U.S. Attorneys, Marijuana
Enforcement (Jan. 4, 2018), https://go.usa.gov/xu5ej ....... 4
National Conf. of State Legislatures,
State Medical Cannabis Laws (Apr. 19, 2022),
https://www.ncsl.org/research/health/statemedical-marijuana-laws.aspx ............................................. 3
Dana G. Smith, More People Are Microdosing for
Mental Health. But Does It Work?, N.Y. Times,
Feb. 28, 2022, https://www.nytimes.com/
2022/02/28/well/mind/microdosing-psychedelics.html ..... 11
In the Supreme Court of the United States
No. 21-676
SUSAN K. MUSTA, PETITIONER
v.
MENDOTA HEIGHTS DENTAL CENTER, ET AL.
No. 21-998
DANIEL BIERBACH, PETITIONER
v.
DIGGER’S POLARIS, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE MINNESOTA SUPREME COURT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
INTEREST OF THE UNITED STATES
This brief is submitted in response to the Court’s
orders inviting the Solicitor General to express the view
of the United States. In the view of the United States,
the petitions for writs of certiorari should be denied.
STATEMENT
A. Federal Law Background
1. In 1970, Congress enacted the Controlled Substances Act (CSA or Act), Pub. L. No. 91-513, Tit. II, 84
Stat. 1242, “with the main objectives of combating drug
abuse and controlling the legitimate and illegitimate
(1)
2
traffic in controlled substances.” Gonzales v. Oregon,
546 U.S. 243, 250 (2006); see Gonzales v. Raich, 545 U.S.
1, 10-15 (2005). The CSA makes it “unlawful for any
person knowingly or intentionally” to “possess a controlled substance,” or to “manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance,” except as authorized by the Act. 21 U.S.C. 841(a)(1), 844(a).
Each substance controlled by the CSA is placed into
one of five schedules. 21 U.S.C. 812. Substances are
“grouped together based on their accepted medical
uses, the potential for abuse, and their psychological
and physical effects on the body.” Raich, 545 U.S. at 13.
The CSA permits “the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from,
or between schedules.” Id. at 14-15; see 21 U.S.C. 811.
A substance is listed in schedule I, the most restrictive
classification, if it presents “a high potential for abuse,”
has no “currently accepted medical use in treatment
in the United States,” and lacks “accepted safety for
use * * * under medical supervision.” 21 U.S.C.
812(b)(1)(A)-(C). The CSA prohibits the manufacture,
distribution, dispensation, or possession of a Schedule I
drug, “with the sole exception being use of the drug as
part of a [federally] preapproved research study.”
Raich, 545 U.S. at 14; see 21 U.S.C. 823(f ).
When it enacted the CSA in 1970, “Congress classified marijuana as a Schedule I drug.” Raich, 545 U.S.
at 14; see CSA § 202(c), 84 Stat. 1249 (placing “marihuana” in schedule I(c)(10)). The CSA thus “reflects a
determination that,” for purposes of federal law, “marijuana has ‘no currently accepted medical use.’ ” United
3
States v. Oakland Cannabis Buyers’ Coop., 532 U.S.
483, 491 (2001) (quoting 21 U.S.C. 812(b)(1)(B)).
2. The CSA also “contemplates a role for the States
in regulating controlled substances.” Gonzales, 546
U.S. at 251. In particular, the Act specifies that none of
its provisions “shall be construed as indicating an intent
on the part of the Congress to occupy the field in which
that provision operates, * * * to the exclusion of any
State law on the same subject matter which would otherwise be within the authority of the State, unless there
is a positive conflict between” the federal provision and
the “State law so that the two cannot consistently stand
together.” 21 U.S.C. 903.
In 1996, California created “an exception to [its own]
laws prohibiting the possession and cultivation of marijuana” for patients with certain medical conditions.
Oakland Cannabis, 532 U.S. at 486. Other States followed suit, and 37 States now allow marijuana use for
such purposes, in at least some regulated form, as a
matter of state law. National Conf. of State Legislatures, State Medical Cannabis Laws (Apr. 19, 2022),
https://www.ncsl.org/research/health/state-medicalmarijuana-laws.aspx. Some additional States also permit use of products derived from cannabis plants that
have lower levels of psychoactive chemical. Ibid. This
Court has made clear, however, that “medical necessity
is not a defense to manufacturing or distributing marijuana.” Oakland Cannabis, 532 U.S. at 494.
Both Congress and the Executive Branch initially
“oppose[d]” state laws like California’s, Omnibus Consolidated and Emergency Supplemental Appropriations
Act, 1999 (1999 Act), Pub. L. No. 105-277, Div. F(11),
112 Stat. 2681-761, which they regarded as “a threat to
the [n]ational * * * goal of reducing drug abuse,” 62
4
Fed. Reg. 6164, 6164 (Feb. 11, 1997); see 1999 Act Div.
F(1)-(11), 112 Stat. 2681-760 to 2681-761. Between 2009
and 2014, however, the Department of Justice issued
several memoranda instructing that, while state marijuana laws do not “alter in any way the Department’s
authority to enforce federal law” or “provide a legal defense to a violation of federal law,” federal law-enforcement officials “[a]s a general matter * * * should not
focus federal resources * * * on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Memorandum from David W. Ogden, Deputy
Att’y Gen., for Selected U.S. Attorneys, Investigations
and Prosecutions in States Authorizing the Medical
Use of Marijuana 1-2 (Oct. 19, 2009), https://go.usa.gov/
xu5My; see, e.g., Memorandum from James M. Cole,
Deputy Att’y Gen., for All U.S. Attorneys, Guidance
Regarding Marijuana Enforcement 4 (Aug. 29, 2013)
(similar), https://go.usa.gov/xu5Mh. In 2018, the Department rescinded those memoranda. Memorandum
from Jefferson B. Sessions, III, Att’y Gen., for All U.S.
Attorneys, Marijuana Enforcement (Jan. 4, 2018),
https://go.usa.gov/xu5ej.
Since 2014, Congress has inserted provisions (riders)
in annual appropriations statutes stating that “[n]one of
the funds made available under [the statute] to the Department of Justice may be used * * * to prevent” specified States “from implementing their own laws that authorize the use, distribution, possession, or cultivation
of medical marijuana.” Commerce, Justice, Science,
and Related Agencies Appropriations Act, 2022, Pub. L.
No. 117-103, Div. B, § 531 (2022) (2022 Act); see United
States v. Trevino, 7 F.4th 414, 419-420 (6th Cir. 2021)
5
(discussing similar riders in earlier annual appropriations statutes), cert. denied, 142 S. Ct. 1161 (2022). In
addition, in 2018, Congress amended the CSA’s definition of marijuana to exclude certain products that contain only a limited amount of psychoactive chemical
(e.g., cannabidiol, or CBD). Agriculture Improvement
Act of 2018, Pub. L. No. 115-334, §§ 10113, 12619, 132
Stat. 4908, 5018; see 21 U.S.C. 802(16); 7 U.S.C. 1639o(1).
Congress has not, however, enacted various proposed bills that would have listed marijuana on a different schedule or removed it altogether from the list of
substances regulated by the CSA. See, e.g., Marijuana
1-to-3 Act of 2021, H.R. 365, 117th Cong., 1st Sess.
(2021); Marijuana Opportunity Reinvestment and Expungement Act of 2020, H.R. 3884, 116th Cong., 2d Sess.
(2020); Marijuana Freedom and Opportunity Act,
S. 1552, 116th Cong., 1st Sess. (2019); Ending Federal
Marijuana Prohibition Act of 2017, H.R. 1227, 115th
Cong., 1st Sess. (2017). And the Executive Branch has
denied various requests to reschedule or decontrol marijuana. See, e.g., Sisley v. U.S. DEA, 11 F.4th 1029,
1033 (9th Cir. 2021) (discussing recent denial); 81 Fed.
Reg. 53,688 (Aug. 12, 2016) (earlier denial); 76 Fed. Reg.
40,552 (July 8, 2011) (same); Raich, 545 U.S. at 15 n.23
(collecting earlier denials). As a result, “federal law still
flatly forbids the * * * possession, cultivation, or distribution of marijuana,” subject only to the narrow research exception. Standing Akimbo, LLC v. United
States, 141 S. Ct. 2236, 2237 (2021) (statement of
Thomas, J., respecting the denial of certiorari). *
Exercising its authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., the United States Food and Drug
Administration (FDA) has approved a drug containing cannabis*
6
B. State Law Background
Minnesota has a five-tier schedule of controlled substances that resembles the CSA’s. Minn. Stat. § 152.01
et seq. (2021). Marijuana is listed on schedule I, the
most serious tier, and cannot be prescribed for any purpose. Id. § 152.02, Subd. 2(h); see id. §§ 152.021, 152.12.
In 2014, Minnesota enacted the Medical Cannabis
Therapeutic Research Act (Cannabis Act), Minn. Stat.
§§ 152.22-152.37 (2021). Under that law, a patient with
a qualifying medical condition, id. § 152.22, Subd. 14,
may apply to enroll in a state-administered marijuana
program, id. § 152.27, Subd. 3(a). If the application is
approved, the Minnesota Department of Health will issue a registry verification to the patient, the patient’s
healthcare practitioner, and a participating manufacturer, which may then (with the approval of a pharmacist) supply marijuana to the patient. Id. §§ 152.27,
Subd. 6; 152.29, Subd. 3.
Minnesota’s Cannabis Act does not “require the
medical assistance and MinnesotaCare programs”—
state-run health programs for low-income patients—“to
reimburse an enrollee or a provider for costs associated
with the medical use of cannabis.”
Minn. Stat.
§ 152.23(b) (2021). But the law contains no similar provision addressing reimbursement for marijuana under
state workers’ compensation law, which generally provides that an “employer shall furnish any medical * * *
treatment * * * as may reasonably be required * * *
to cure and relieve from the effects of ” a workplace injury. Id. § 176.135, Subd. 1. The relevant state administrative agency has determined that marijuana, when
derived CBD and several drugs containing the same psychoactive
chemical as marijuana. The FDA has not, however, approved any
drug products that fall within the CSA definition of marijuana.
7
used by an enrollee in the state program established by
the Cannabis Act, is not an “[i]llegal substance” for purposes of Minnesota’s workers’ compensation scheme.
Minn. R., Pt. 5221.6040, Subpt. 7a (2015).
C. Proceedings Below
1. Musta v. Mendota Heights Dental Center, No. 21-676
In 2003, petitioner Susan Musta injured her neck
while working as a dental hygienist for respondent
Mendota Heights Dental Center. Musta Pet. App. 4a,
66a. After multiple surgeries and other medical interventions failed to relieve the pain caused by the injury,
see id. at 66a-77a, a doctor certified that Musta was suffering “intractable pain”—a qualifying medical condition under Minnesota’s Cannabis Act, id. at 48a. Musta
subsequently enrolled in the state program established
by the Cannabis Act, purchased marijuana from a stateauthorized dispensary, and requested reimbursement
from Mendota Heights. Id. at 48a-49a, 82a. Mendota
Heights did not dispute that Musta’s use of marijuana
complied with the Cannabis Act and was reasonable,
medically necessary, and causally related to her work
injury. Id. at 54a. But it declined to reimburse Musta
for her marijuana purchase, on the ground that doing so
would conflict with the CSA. Id. at 49a.
A state workers’ compensation judge ordered Mendota Heights to provide reimbursement. Musta Pet.
App. 57a-58a. The Worker’s Compensation Court of
Appeals affirmed, relying on the parties’ stipulation
that Musta’s marijuana use complied with state law and
finding no jurisdiction to address a federal-preemption
defense. Id. at 51a-52a. But the Minnesota Supreme
Court reversed the order on preemption grounds, fo-
8
cusing on the “impossibility theory of conflict preemption” and reasoning that compliance with the order
“would expose the employer to criminal liability under
federal law for aiding and abetting Musta’s unlawful
possession.” Id. at 4a, 21a; see id. at 15a-30a. Justice
Chutich dissented in relevant part, taking the view that
reimbursement of Musta’s purchase of marijuana would
not satisfy the requirements of aiding-and-abetting liability under federal law and did not create an obstacle
to the operation of the CSA. Id. at 31a-45a.
2. Bierbach v. Digger’s Polaris, No. 21-998
In 2004, petitioner Daniel Bierbach injured his ankle
while driving an all-terrain vehicle in connection with
his employment by respondent Digger’s Polaris. Bierbach Pet. App. 71a. After undergoing surgery and
physical therapy, along with other treatments, he was
certified as suffering intractable pain. Id. at 71a-72a.
He then purchased marijuana in accordance with the
Cannabis Act and sought reimbursement from Digger’s
Polaris. Id. at 72a-74a. The company refused on both
state-law and federal-preemption grounds. Id. at 75a.
Following an evidentiary hearing, a state workers’
compensation judge ordered reimbursement, concluding that Bierbach’s marijuana use complied with state
law and finding no jurisdiction to address a federalpreemption defense. Bierbach Pet. App. 82a-92a. The
Worker’s Compensation Court of Appeals affirmed on
similar grounds. Id. at 70a-81a. But the Minnesota Supreme Court reversed, with the majority relying on the
court’s contemporaneous decision in Musta’s case, and
with Justice Chutich reiterating her dissent in that case
and deeming the employer’s various state-law arguments to be meritless. Id. at 1a-28a.
9
DISCUSSION
The petitions in these cases, which present a novel
question in a rapidly evolving area of law, do not warrant this Court’s review. The judgments below are 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 that item. The decisions
below, however, rest on a more complex rationale that
unnecessarily explores the scope of federal aiding-andabetting liability outside the context of any federal
prosecution. And while petitioners identify a narrow
conflict on the question presented, it involves only four
state courts of last resort, none of which has meaningfully considered all of the possible grounds for preemption. No further review is warranted at this time.
A. The Judgments Below Are Correct
Petitioners intentionally possessed marijuana, which
is a crime under federal law even if permitted under
state law. See 21 U.S.C. 844(a); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494 & n.7
(2001). A state law that requires a third party to subsidize such conduct is preempted by federal law. Under
black-letter principles of conflict preemption, “federal
law must prevail” either “where ‘compliance with both
state and federal law is impossible,’ or where ‘the state
law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. ’ ” Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 377
(2015) (citation and internal quotation marks omitted);
see Kansas v. Garcia, 140 S. Ct. 791, 808 (2020)
(Thomas, J., concurring) (explaining that conflict
preemption occurs when “federal and state law ‘directly
10
conflict,’ ” such that “ ‘the two are in logical contradiction’ ”) (citations omitted). Although the Minnesota Supreme Court relied exclusively on the “impossibility
theory of conflict preemption” in the decisions below,
Musta Pet. App. 20a n.7, that theory is not necessary to
resolve these cases.
1. To the extent that state law requires reimbursement for the purchase of marijuana, in circumstances
where its distribution or possession is illegal under federal law, the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Oneok, 575 U.S. at 377 (citation
omitted), or otherwise “directly conflict[s]” with federal
law, Garcia, 140 S. Ct. at 808 (Thomas, J., concurring)
(citation omitted). As this Court has recognized, Congress’s classification of marijuana as a Schedule I controlled substance “reflects a determination * * * that
marijuana has ‘no currently accepted medical use.’ ”
Oakland Cannabis, 532 U.S. at 491 (citation omitted).
A state-law order that compels third parties to directly
subsidize petitioners’ possession of marijuana on a medical-use rationale would therefore “override a legislative determination manifest in” the CSA. Id. at 493.
Under principles of conflict preemption, such a contradiction cannot stand. See, e.g., Arizona v. United
States, 567 U.S. 387, 399, 405 (2012) (explaining that
state law “must * * * give way” when it conflicts with
“a considered judgment” embodied in federal law).
If States could enforce laws compelling third parties
to subsidize federal crimes, they could directly undermine congressional determinations. For example, no legal principle would preclude a State from requiring private employers to reimburse the use of other federally
prohibited products or substances, such as LSD and
11
other psychedelic drugs, based on perceived benefits.
See 21 U.S.C. 812(c) (including LSD in schedule I(c)(9));
cf., e.g., Dana G. Smith, More People Are Microdosing
for Mental Health. But Does It Work?, N.Y. Times,
Feb. 28, 2022, https://www.nytimes.com/2022/02/28/well/
mind/microdosing-psychedelics.html. A State could
likewise compel private parties to provide reimbursements for services that are banned by federal law. See,
e.g., 18 U.S.C. 431-443 (prohibiting certain types of contracts). But it “is simply implausible that Congress
would have” criminalized particular conduct “if it had
been willing to” let States “compromise [the] effectiveness” of those laws by compelling private parties to subsidize that very criminal conduct. Crosby v. National
Foreign Trade Council, 530 U.S. 363, 376 (2000).
“Acknowledging the inconsistency between state
and federal law, a number of states have adopted statutory provisions making it clear that an insurer or selfinsurer may not be compelled to reimburse a patient for
costs associated with the use of medical marijuana.”
8 Lex K. Larson, Larson’s Workers’ Compensation
Law § 94.06 (rev. ed. Dec. 7, 2021). Minnesota’s Cannabis Act itself exempts state-run health programs for
low-income patients from any requirement “to reimburse an enrollee or a provider for costs associated with
the medical use of cannabis.” Minn. Stat. § 152.23(b)
(2021). That exclusion—which by definition affects patients with the greatest financial needs—avoids placing
state officials who implement those programs into conflict with federal law. The conflict with the CSA remains, however, when Minnesota law compels private
employers to subsidize the same federal crimes.
A state-law requirement to provide such a subsidy
differs in kind from various other state laws addressing
12
the use of marijuana in response to a medical condition.
A State that merely decriminalizes such marijuana use
under state law, for example, would likely not trigger
obstacle preemption. See Murphy v. NCAA, 138 S. Ct.
1461, 1474 (2018). The state orders at issue here, however, are fundamentally different because they compel
even unwilling third parties to subsidize federal possession crimes. Cf., e.g., Michigan Canners & Freezers
Ass’n v. Agricultural Mktg. & Bargaining Bd., 467 U.S.
461, 478 (1984) (finding conflict preemption where state
law, contrary to federal law, authorized private entities
to make contracts that would bind third parties).
2. Neither petitioners nor the two state courts of
last resort that have upheld marijuana-reimbursement
orders have meaningfully engaged with the points
above. And nothing that petitioners or state courts have
identified would refute such conflict preemption.
a. Some state courts have viewed 21 U.S.C. 903 to
foreclose CSA preemption of state law unless it is impossible to comply with both sources of law. See Appeal
of Panaggio, 260 A.3d 825, 831-832 (N.H. 2021) (citing
cases). That misinterprets Section 903.
Section 903 provides that no CSA provision “shall be
construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, * * * to the exclusion of any State law on the same
subject matter * * * unless there is a positive conflict
between” the federal provision and “State law so that
the two cannot consistently stand together.” 21 U.S.C.
903. That language is most naturally read to disclaim
only “field” preemption, ibid., a type of preemption that
would “foreclose any state regulation in the area,”
Oneok, 575 U.S. at 377 (citation omitted; emphasis altered). If field preemption applied, it would preclude
13
States even from adopting drug laws stricter than their
federal counterparts, in contravention of the CSA’s express purpose to “ ‘strengthen,’ rather than to weaken,
‘existing law enforcement authority in the field of drug
abuse,’ ” United States v. Moore, 423 U.S. 122, 132
(1975) (quoting 84 Stat. 1236); see, e.g., State ex rel.
Lance v. District Ct., 542 P.2d 1211, 1213 (Mont. 1975).
In contrast to its express disclaimer of “field”
preemption, Section 903 explicitly preserves preemption when “there is a positive conflict between” the CSA
and “State law so that the two cannot consistently stand
together.” 21 U.S.C. 903. Section 903 thus specifically
embraces principles of “conflict” preemption, ibid.,
which are not limited to impossibility preemption, see
Oneok, 575 U.S. at 378. This “Court has not previously
driven a legal wedge * * * between ‘conflicts’ that prevent or frustrate the accomplishment of a federal objective and ‘conflicts’ that make it ‘impossible’ for private
parties to comply with both state and federal law,”
Geier v. American Honda Motor Co., 529 U.S. 861, 873
(2000), and no sound reason exists to interpret Section
903 to preserve only one form of the “conflict” preemption to which it refers, see, e.g., Gonzales v. Oregon,
546 U.S. 243, 289-290 (2006) (Scalia, J., dissenting) (explaining that Section 903 “merely disclaims field
pre-emption, and affirmatively prescribes federal preemption whenever state law creates a conflict”).
In Wyeth v. Levine, 555 U.S. 555 (2009), this Court
conducted both impossibility- and obstacle-preemption
analyses, notwithstanding a statutory provision directing
—in language closely resembling Section 903’s—that
“state law would only be invalidated upon a ‘direct and
positive conflict’ with” federal law. Id. at 567 (citation
omitted); see id. at 575-581; see also id. at 612 n.4 (Alito,
14
J., dissenting) (explaining that the provision “simply
recognizes the background principles of conflict preemption” and does “not displace [the Court’s] conflict
pre-emption analysis”). The same analysis applies here.
b. To the extent that petitioners address obstacle
preemption, they—like some state courts, see, e.g.,
Hager v. M&K Constr., 247 A.3d 864, 883-888 (N.J.
2021)—rely principally on the annual appropriations
riders that Congress has enacted since 2014. See, e.g.,
Musta Pet. 29-30; see also pp. 4-5, supra. That reliance
is misplaced. The appropriations riders state that
“[n]one of the funds made available * * * to the Department of Justice may be used * * * to prevent” States
“from implementing their own laws that authorize
the use, distribution, possession, or cultivation of medical marijuana.” 2022 Act § 531. That is a restriction
on certain uses of federal funds, not a disclaimer of
otherwise-applicable preemption principles.
By their terms, the appropriations riders do not
speak to the enforcement of workers’ compensation orders like those at issue here. Not only do the “funds
made available * * * to the Department of Justice”
have no bearing on the lawfulness of such orders, but
such orders are not “laws that authorize the use, distribution, possession, or cultivation of medical marijuana,”
2022 Act § 531. Rather than “authoriz[ing]” such activities, the orders compel private employers—whether or
not they are willing—to subsidize marijuana possession
that is permitted under separate state laws. Ibid. And
the appropriations riders do not support an inference
that Congress has accepted state laws compelling thirdparty reimbursement for federal crimes. A limitation
on funding for the enforcement of federal law is not a
repeal of the CSA’s substantive criminal prohibitions.
15
Among other things, Congress is in no way bound to enact similar appropriations riders in future years, and future prosecutions could encompass present-day conduct. See 18 U.S.C. 3282 (general five-year federal statute of limitations for non-capital offenses).
This Court has disfavored interpretations of statutes, especially appropriations statutes, that would result in implied repeals or suspensions of federal law.
See, e.g., Maine Cmty. Health Options v. United States,
140 S. Ct. 1308, 1323 (2020). That principle applies with
full force here. The same congressional majorities that
adopted the appropriations riders “could have enacted
an exception to the” CSA for marijuana. United States
Dep’t of Def. v. FLRA, 510 U.S. 487, 498 (1994). That
they “did not do so,” id. at 499, indicates that Congress
intended for marijuana possession to remain criminal
under federal law—and for state laws compelling subsidization of that crime to remain preempted.
Petitioners observe (Musta Pet. 30) that the CSA
does not expressly regulate insurance practices or proscribe reimbursement for marijuana possession. But
conflict preemption is a form of implied preemption,
see, e.g., Arizona, 567 U.S. at 399, and a requirement to
fund illegal drug possession directly conflicts with federal law by supporting conduct that the CSA prohibits.
B. This Court’s Review Is Not Warranted In These Cases
The Minnesota Supreme Court decisions in these
cases—which adopted an unnecessarily complex
preemption analysis in an idiosyncratic context—do not
warrant this Court’s consideration.
Although the decisions below do not rely on, or even
address, an “obstacle theory of conflict preemption,”
Musta Pet. App. 20a n.7, they nonetheless reach the
correct result of finding the state orders preempted.
16
This Court reviews “judgments,” not “opinions,” Jennings v. Stephens, 574 U.S. 271, 277 (2015) (emphasis
omitted), and review of a correct result is especially unwarranted when it implicates legal reasoning that few
other courts have thoroughly addressed, see Cutter v.
Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“[W]e are a
court of review, not of first view.”). Indeed, the Minnesota Supreme Court’s exclusive reliance on an “impossibility theory of conflict preemption,” Musta Pet. App.
20a n.7, would needlessly complicate any review.
The Minnesota Supreme Court reasoned that respondents’ compliance with the state workers’ compensation orders in these cases would necessarily violate
the federal criminal prohibition on aiding and abetting
a federal crime—namely, the crime of marijuana possession. See Musta Pet. App. 17a-30a. Under the federal aiding-and-abetting statute, 18 U.S.C. 2, a person
aids and abets a crime when “he (1) takes an affirmative
act in furtherance of that offense, (2) with the intent of
facilitating the offense’s commission.” Rosemond v.
United States, 572 U.S. 65, 71 (2014). The Minnesota
Supreme Court reasoned that compliance with the challenged reimbursement orders “effectively facilitates future possession” in light of an employee’s “expectation”
of an ongoing reimbursement obligation under state law
and an employer’s knowledge and intent that its reimbursements will be used for their stated marijuanarelated purpose. Musta Pet. App. 25a, 28a.
That reasoning is complicated, however, by the unusual context of the parties’ apparent “expectation” and
“intent” in these cases, in which the employers correctly
viewed state law as unsettled and disputed any statelaw obligation to reimburse past or future marijuana
purchases. The lack of clarity on the application of state
17
law differentiates these cases from those where an employer engages in a course of reimbursement with more
well-established state-law parameters. And it would be
inadvisable to analyze the potential scope of federal
criminal law in this workers’ compensation context. The
federal government has neither prosecuted respondents nor expressed any desire to do so. It has not indicated the allegations, evidence, and inferences on which
such a prosecution might rely. Nor will it ever have occasion to do so in Minnesota, in which such orders will
no longer be issued.
Although petitioners identify a narrow conflict on
the question presented—with the highest courts of Minnesota and Maine invalidating workers’ compensation
orders requiring reimbursement for marijuana and the
highest courts of New Hampshire and New Jersey upholding them, see Musta Pet. App. 18a-21a—that disagreement does not warrant this Court’s review. The
disagreement is limited and recent, with three of the
four decisions coming in 2021. And it is unclear how
many additional States interpret their state workers’
compensation schemes, standing alone, to require such
reimbursements, or what the limits of such a state-law
reimbursement obligation might be. See, e.g., Wright’s
Case, 156 N.E.3d 161, 171-175 (Mass. 2020) (interpreting state law not to require such reimbursement in part
to avoid preemption concerns); cf. Bierbach Pet. App.
2a (declining to resolve various state-law questions).
Furthermore, no state court of last resort has issued
a decision that provides an appropriate backdrop for
this Court’s review of the obstacle-preemption issues
that are inherent here. The Minnesota and Maine
courts relied only on impossibility preemption. Musta
Pet. App. 29a & n.16; Bourgoin v. Twin Rivers Paper
18
Co., LLC, 187 A.3d 10, 22 (Me. 2018). The New Hampshire court addressed obstacle preemption briefly, noting that the insurer in that case had made its argument
“in a single sentence.” Panaggio, 260 A.3d at 837. And
the New Jersey court’s preemption analysis turned entirely on its flawed reading of the appropriations riders.
Hager, 247 A.3d at 886-888. Given the novelty of the
issues, this Court would benefit from further development of the relevant preemption questions in the lower
courts before potentially addressing them itself.
The relatively narrow workers’ compensation issue
in these cases, moreover, is only one of many in a rapidly evolving area of the law. “[T]he current legal landscape of medical marijuana law may, at best, be described as a hazy thicket.” Wright’s Case, 156 N.E.3d
at 165. The Legislative and Executive Branches of the
federal government are best situated to consider any
potential tailored measures to address specific instances of interaction between federal and state marijuana laws. To that end, Congress has recently amended
the federal prohibition on marijuana, see p. 5, supra
(noting 2018 change to CSA definition of marijuana),
and continues to consider more expansive approaches;
indeed, shortly after the Court issued its invitations in
these cases, the House of Representatives passed legislation that would remove marijuana from the CSA’s list
of controlled substances altogether. Marijuana Opportunity Reinvestment and Expungement Act, H.R. 3617,
117th Cong., 2d Sess. (Apr. 4, 2022). Refraining from
taking up the questions presented here thus represents
the sounder course at this time. Cf. Nebraska v. Colorado, 577 U.S. 1211 (2016) (No. 144, Orig.) (denying
leave to file a bill of complaint in this Court alleging
preemption of state marijuana laws).
19
CONCLUSION
The petitions for writs of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
KENNETH A. POLITE, JR.
Assistant Attorney General
ERIC J. FEIGIN
Deputy Solicitor General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General
JOEL S. JOHNSON
Attorney
MAY 2022
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