As first reported by Marijuana.com, a Justice Department internal memo distributed to U.S. House Representatives last year misinformed members on the scope of a medical marijuana amendment they were voting on.
Last year, lawmakers approved 219 to 189 an amendment aimed at prohibiting the Department of Justice from using funds to interfere with the implementation of state medical marijuana laws.
We have now learned that in the days before this vote, Justice Department officials distributed “informal talking points” incorrectly warning members that the amendment could “in effect, limit or possibly eliminate the Department’s ability to enforce federal law in recreational marijuana cases as well.” The realization came from a footnote contained in the memo stating that the talking points previously released were, “intended to discourage the passage of the rider but does not reflect our current thinking.”
The talking points seemed to have an effect on several members, who prior to the final vote on the amendment, argued against it claiming the “amendment as written would tie the DEA’s hands beyond medical marijuana.” Representative Andy Harris (R-MD) went on to claim, “The problem is that the way the amendment is drafted, in a state like Maryland which has medical marijuana, if we ever legalized it, the amendment would stop the DEA from going after more than medical marijuana.”
These statements coupled with the rest of the long debate that took place before the amendment, clearly signal that lawmakers on both sides of the argument believed the amendment to prohibit federal interference in states with medical marijuana.
However, in a very narrow interpretation of the amendment, the Justice Department memo claims that the restriction of federal funds for the use of interfering in state-sanctioned medical marijuana programs is strictly for states and state officials implementing the laws themselves. That is to say, the federal government would still be allowed to arrest and prosecute people who grow marijuana and operate dispensaries but the state officials issuing the licenses are protected from federal intrusion. This explains the continued action taken by the federal government against individuals in states with legal medical marijuana laws on the books.
The same amendment protecting medical marijuana states from federal intervention was passed again this year with a larger margin of support, 242-186.
Representatives Rohrabacher (R-CA) and Farr (D-CA) (sponsors of the medical marijuana amendment) requested last week the Department of Justice’s inspector general hold an internal investigation into the continued action taken by the federal government. They feel Congress has made it clear by passing the amendment two years in a row, federal funds should no longer be used to prosecute individuals acting in compliance with their state laws.
Currently 23 states and the District of Columbia have passed medical marijuana laws. Check out our State Info page to check on your state’s current marijuana laws.
Members of the United States Senate Appropriations Committee voted by a margin of 2 to 1 today in favor of language limiting the Justice Department’s ability to take criminal action against state-licensed operations that are acting in full compliance with the medical marijuana laws of their states. The provision was offered as an amendment by Sen. Barbara Mikulski (D-MD) in the Senate version of the Fiscal Year 2016 Commerce, Justice, and Science Appropriations bill.
The Senate amendment mirrors language approved by the House last week in their version of the CJS bill.
Passage of the provision reauthorizes protections signed into law last year, but which are set to expire this September.
A vote by the full Senate and reconciliation with the House is necessary before the 2016 spending bill is transmitted to the President.
Members of the United States House of Representatives are anticipated to vote this week (perhaps as earl as Tuesday night) on a series of amendments to a Justice Department spending bill. These amendments seek to limit the federal government’s intrusion in states that have regulated various aspects of marijuana production and access.
Specifically, Representatives Tom McClintock (R-CA) and Jared Polis (D-CO) are introducing an amendment intended to halt the federal prosecution of individuals involved in marijuana-related activities that are in compliance with the laws of their states. Last year, Congressional members approved an amendment to the DOJ funding bill that restricted the Department from interfering in activities specific to state medical marijuana programs. (That measure is also up for re-authorization; to learn more click here.) This year’s McClintock/Polis amendment is broader in its scope as it seeks to halt Justice Department interference among individuals and businesses engaged in state-compliant transactions particular to both the medical or recreational use of cannabis.
Please call your US Representative today via NORML’s Take Action Center here to support the McClintock/Polis amendment. Let them know that this amendment is supported by a majority of voters. According to a 2015 nationwide Pew Research poll, 59 percent of Americans agree that the government should not enforce federal marijuana laws in states that allow its use. Majorities of both Democrats and Republicans endorse this position.
Twenty-three states now permit the medical use of cannabis, while four states now regulate the plant’s production and sale to all adults. Tell Congress that federal officials should not stand in the way of these state policies and to vote ‘yes’ on the McClintock/Polis amendment.
You can also e-mail your House member and tell them to vote ‘yes’ on the McClintock/Polis amendment by clicking here.
It has been nearly seven weeks since voters in Colorado and Washington made history, enacting at the ballot box unprecedented measures legalizing the adult possession on cannabis. Yet during this time, federal officials have largely remained silent.
One week ago, US Attorney General Eric Holder cryptically told Bloomberg News that the administration will formally announce its intentions “relatively soon,” but added no further details. Most recently, on Friday, President Obama told ABC News’ Barbara Walters: “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal. … We’ve got bigger fish to fry.” Of course, federal officials do not target minor marijuana offenders now — so the President’s statement provides little clarity as to what actions the Administration may take going forward as Colorado and Washington begin implementing broader regulatory reforms, including measures to license proprietors to commercially produce and sell cannabis to adults.
Today, in Alternet.org, I speculate as to what actions the Administration may take — and what actions they may not take — in the coming weeks as state lawmakers work toward the full implementation of Colorado and Washington’s newly enacted marijuana laws. An excerpt from this commentary appears below.
Will Obama Go After Legal Pot in Washington and Colorado?
With public opinion firmly behind the will of the voters, is it realistic to think that the Obama Justice Department will take action to try and nullify Colorado and Washington’s legalization laws? It’s possible, but it may not be as likely as some think.
For starters, states are not mandated under the US Controlled Substances Act to criminalize marijuana or to arrest and prosecute adult cannabis consumers and the federal government cannot compel prosecutors in Colorado or Washington to do so. The Justice Department and the US Drug Enforcement Administration could, theoretically, choose to selectively prosecute those individuals in Colorado and Washington who possess or grow quantities of plant that are compliant with state law. But such a scenario is hardly plausible. The federal government lacks the manpower and the public support – and therefore the political will – to engage in such behavior and this reality is unlikely to change any time soon. As acknowledged by former congressman and ex-DEA director Asa Hutchinson at a recent CATO Institute forum on the subject, the federal government never has prosecuted people for possessing an ounce of marijuana and it is not about to start doing so now.
By contrast, the Obama administration may attempt to actively prohibit states from allowing for the above-ground, licensed production and sale of cannabis by authorized proprietors. Justice Department officials could theoretically do so by either bringing a legal challenge against the states, by threatening local officials, or by proposing to withhold federal funding. But none of these actions are assured. Here’s why.
To date, the Obama administration has done little to interfere with the state-approved production and licensed distribution of medical marijuana in those states that explicitly license and regulate this activity — specifically in Arizona, Colorado, Maine, New Jersey, and New Mexico. (In recent days, some of the first state-approved dispensaries opened for business in Arizona and New Jersey. In coming months, licensed dispensaries are also anticipated to open their doors to the public in Vermont as well as the District of Columbia. **AUTHOR’S NOTE: By contrast, the Justice Department has taken actions to aggressively close operations in California, Oregon, Montana, and Washington — though none of these states explicitly license dispensaries.**) In Colorado – where the state has licensed several hundreds of cannabis dispensaries and oversees “seed to sale” regulations governing the plant’s production and distribution – federal officials have yet to either file suit or threaten any of the state regulators who oversee the program. In response to a lawsuit filed in 2011 by Arizona Gov. Jan Brewer, who sought to invalidate the state’s 2010 medical cannabis law, lawyers for the federal government affirmed that the administration had never engaged in such strong-arm tactics and did not intend to.
The federal judge in the case agreed. She rejected Gov. Brewer’s legal arguments that the operation of state-approved medical marijuana dispensaries was preempted by federal law or put state employees at risk for federal prosecution, determining “[T]he Complaint does not detail any history of prosecution of state employees for participation in state medical marijuana licensing schemes [and] fails to establish that Plaintiffs are subject to a genuine threat of imminent prosecution and consequently, the Complaint does not meet the constitutional requirements for ripeness.”
A Maricopa County (AZ) Superior Court ruling from earlier this month further affirms that states possess the legal authority to regulate the legal distribution of cannabis, at least in some specific instances, without running afoul of federal anti-drug laws. In the case before the Court, White Mountain Health Center, Inc. v. Maricopa County, Judge Michael Gordon determined that the federal Controlled Substances Act did not preempt Arizona’s efforts to authorize “the local cultivation, sale, and use, of medical marijuana.” Writing for the Court, Judge Gordon declared that nothing in Arizona’s law circumvents federal law since Justice Department officials could still continue to locally enforce the Controlled Substances Act. In fact, Judge Gordon suggested that the new law “affirmatively provides a roadmap for federal enforcement of the CSA, if they so wished to” since the statute requires patients and proprietors to register their activities with the state. He concluded: “The Court rejects … arguments that the [law] violates public policy simply because marijuana use and possession violate federal law. Eighteen states and the District of Columbia have passed legislation permitting the use of marijuana in whole or in part. The Court will not rule that Arizona, having sided with the ever-growing minority of States, and having limited it to medical use, has violated public policy.”
Some legal experts, including law professor Robert Mikos of Vanderbilt University Law School, suggest an additional legal theory as to why Colorado and Washington’s proposed regulatory schemes may not be subject to federal preemption. Speaking at a recent CATO Institute sponsored forum, Mikos suggested that the newly enacted state legalization laws do not violate the spirit or the intent of the Controlled Substances Act because the federal law exists for the expressed purpose of limiting the consumption of certain substances by the public, particularly young people. One can argue that the proposed statewide regulatory schemes in Colorado and Washington – which impose age restrictions for buyers and limit sellers to those authorized by the state – are intended to serve a similar purpose. Further, the proposed state programs, “do not stop federal authorities from sanctioning registrants.” Notably, Superior Court Judge Gordon specifically highlighted these arguments in his decision to uphold Arizona’s law and to reject claims that it positively conflicted with federal law.
“No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree [by Arizona’s medical marijuana law],” he opined. “Instead of frustrating the CSA’s purpose, it is sensible to argue that the [law] furthers the CSA’s objectives in combating drug abuse and the illegitimate trafficking of controlled substances.”
You can read the full text of my commentary here.
Michael Sherer at Time Magazine has posted online today a particularly astute examination of the Obama administration’s flip-flop on marijuana policy. Below are some key excerpts. Michael’s full article appears in the newsstand edition of Time.
[T]he Obama Administration is cracking down on medical marijuana dispensaries and growers just as harshly as the Administration of George W. Bush did. In 2011, the Department of Justice revised its guidance to U.S. Attorneys, allowing them to target any medical marijuana activity except for ill patients and their immediate caregivers. The Drug Enforcement Administration has made it clear that “medical marijuana is not medicine,” and even called it a “mortal danger.” … In many states, U.S. Attorneys have advised state and local officials to back away from plans to create rules and regulations that would codify the medical pot industry, in some cases raising the possibility that lawmakers could be prosecuted for promoting drug use that is legal under state law.
… Over the last few weeks, I have talked with nearly a dozen people in the medical marijuana business, three U.S. Attorneys, White House officials and local officials who oppose the federal crackdown for a story that will appear in this week’s newsstand issue of TIME. The answer on the ground is, predictably, far more complicated than either medical marijuana advocates or the Obama Administration is willing to describe. And it all comes down to this: Despite Obama’s promises during the 2008 campaign, federal prosecutors have lost faith in the ability of state and local officials to control a booming commercial industry for a drug that is still illegal to grow, possess or sell under federal law. As a result, a once broad exemption from prosecution for medical marijuana providers in state where it’s legal has been narrowed to a tiny one. … [T]he nation is left with an uneasy status quo: The federal government is not trying to eliminate medical marijuana altogether, but it has decided that it cannot stand for the commercialization or large scale production of marijuana for the stated purpose of helping the sick, even when that production is technically within the bounds of state law.
…[I]n a different world, the federal government might work with state and local officials to more tightly regulate the growing of marijuana for medical purposes. But since pot is illegal under all circumstances under federal law, the opposite has been happening. Attempts, particularly in California, to more tightly regulate and thereby provide greater legal protection for the drug, have been shut down by the federal government.
And so, medical marijuana is left in a no man’s land. Individual sick users are safe from prosecution, but they are likely to find it harder in the coming months to get the drug. Growers and dispensers are not protected by state law from federal prosecution, especially if they become large enough to get noticed by federal investigators. And the likely result is that more of the medical marijuana industry will be pushed underground in the coming years, making it more difficult for local officials to track the business. This arguably will only increase some criminal activity, as large amounts of money and a very profitable commodity move through the system by way of small-time dealers working without sophisticated security systems.
…“What this really screams for a cohesive national policy.”
But there is no such policy on the horizon. Obama has shown little interest in elevating the issue. Some in federal law enforcement–and at the Office of National Drug Control Policy–hope that the advent of new pharmaceutical replacements for grown medical marijuana, like the Canadian drug Sativex, [Editor’s note: Sativex is a British drug, not a Canadian manufactured product — though it is legal by prescription in Canada.] will make the entire issue moot in the coming decade. But that looks unlikely in the short term, given the lack of concern among the general public with medical marijuana. A 2010 poll by the Pew Center for the People and the Press found that 73% say they favor “their state allowing the sale and use of marijuana for medical purposes if it is prescribed by a doctor.”
In other words, don’t hold your breath for clarity anytime soon. The haze is here to stay.