By Nancy Morawetz
When the Supreme Court hears Mellouli v. Holder this week, it will be considering an argument from the Office of the Solicitor General (OSG) about the scope of the drug deportability statute that contradicts decades of caselaw from the Board of Immigration Appeals and is internally contradictory. That alone is reason for the Court to reject the OSG’s argument. But what about the merits of the OSG’s reading? The OSG argues that federal drug deportability applies whenever a person is convicted under a state law that covers substances not penalized under federal law if the law also happens to penalize federally controlled substances. Is that a plausible way to read the statute?
[This essay is part of an online symposium on crImmigration.com addressing Mellouli v. Holder. For other contributions, visit the symposium introduction here.]
The answer is pretty clearly no given the structure of the drug deportability grounds. If you were to plot it out as a Venn diagram, the federal drug deportability ground creates two circles within a circle. The outer circle is made up of all federally controlled substances. The inner circle is made up of marijuana offenses. Within the inner circle is a set of marijuana offenses that are exempt from the deportability ground. Even though marijuana is a federal controlled substance, and therefore part of the big circle, it is subject to special treatment because of Congress’s judgment that the drug deportability consequences without the exception are too harsh for some marijuana offenses.
The OSG’s argument to the Supreme Court ignores this structure. The OSG argues that drug deportability should extend to any law that covers in part federally controlled substances even if it controls other substances that are not federally controlled. Thus the OSG allows for drug deportability completely outside the circle of federally controlled substances. The diagram above provides some examples of drugs that are totally outside the circle.
Under the OSG scheme, a substance that the federal government chose not to control at all (so it is not even in the circle) gets the harsher treatment reserved under the federal scheme for offenses that do not qualify for the marijuana exception. Under the OSG’s reading, for example, a teenager in Kansas who follows Miley Cyrus’s example and tries smoking salvia (a herb that the federal government has chosen not to control) would be subject to deportability while one who smokes marijuana (which is on the federal schedule) could benefit from the federal exception.
This reading violates the care with which the statute defines federal controlled substances for drug deportability and then singles out a federal controlled substance offense that is less serious. The very act of singling out a substance eligible for less harsh treatment shows that Congress cared about which drugs were on the federal schedule and assured that drug deportablity is not so extensive that it reaches some less serious conduct. It totally contradicts this scheme to allow any substance that any state happens to add to its controlled substances list to serve as a ground of deportability under federal law when the federal government has chosen not to control that substance.
The results get especially crazy when it comes to Massachusetts. Massachusetts includes all prescription drugs in its law that also governs federal controlled substances. The state may have good reason to place these different substances under one law. But under the OSG’s reading of the deportability ground, this type of state law leapfrogs over the federal concern for distinguishing a less serious federal offense and imposes the harsh federal deportation consequences reserved for non-marijuana federally controlled substances (and marijuana crimes that do not fit the terms of the exception) on state offenses covering substances not even penalized under federal law. This makes a mockery out of the care with which Congress deliberated about what consequences should flow for each type of federally controlled substance. As the Venn diagram shows, the OSG’s reading violates Congress’s scheme.
Nancy Morawetz is a Professor of Clinical Law at New York University School of Law.