SPENDING BILL CALLS FOR FEDS TO BACK OFF ON MEDICAL MARIJUANA ENFORCEMENT, BUT LANGUAGE IS VAGUE

By Miriam Raftery

December 17, 2014 (Washington D.C.) – Two California Congressmen slipped language into the $1.1 trillion spending bill signed into law by the President, calling on the federal government to stop spending money enforcing marijuana laws in states where medical marijuana has been legalized. But the language is vague and lacks teeth, so it’s not yet clear whether marijuana patients, clinics and growers can breathe a sigh of relief.

The actual text of the amendment   states that it “prohibits the use of funds to prevent certain States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”   The measure then lists 32 states that have already legalized medical marijuana and makes clear that the Department of Justice may not use money from the spending bill to block those states from regulating marijuana through state laws. 

The language was added by California Congressmen Dana Rohrabacher, a Republican, and Sam Farr, a Democrat.  Farr says his intent is to send a clear message that “if you are a legal resident doing business under state law, the feds just can’t come in and bust you and bust the doctors and bust the patient.” 

But critics contend the law is too vague to offer real protections.  If the Drug Enforcement Agency raids a clinic or arrests a patient for growing marijuana in a state that allows medical use and the U.S. Attorney prosecutes that person, it does not “prevent” the state from “implementing” its law decriminalizing cultivation of cannabis for medical use, an opinion piece in Forbes by Jacob Sullum, senior editor at Reason, points out.  Yet such actions could effectively shut down access. In California, where medical marijuana use is legal but the status of dispensaries remains murky, federal officials may still seek to justify raids.

Farr, in a telebriefing Friday, admitted that the language was a “statement of Congressional intent that DEA should back off” and that reconciliation between state and federal policies are still needed. But he added, “I think intent was very clear from the excellent floor speeches.”

Some media outlets have jumped on the language to make overly broad assumptions. Associate Press wrote, “Under a provision in the spending bill passed by Congress over the weekend, states where medical marijuana is legal would no longer need to worry about federal drug agents raiding retail operations. Agents would be prohibited from doing so.”

The Los Angeles Times reported, “Tucked deep inside the 1,603-page federal spending measure is a provision that effectively ends the federal government's prohibition on medical marijuana and signals a major shift in drug policy.”

But in fact the bill itself leaves wiggle room—and federal agencies have failed to heed event Presidential policies in the past. 

Even after Obama took office and his White House affirmed that “federal resources should not be used to circumvent state laws” and Attorney General Holder pledged to have the Justice Department focus only on “large traffickers”, enforcement actions continued. 

Deputy Attorney General David Ogden also stated in an October 2009 memo that federal resources should not focus on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” While patients with serious illnesses and their caregivers should be left along, Ogden said federal prosecutions could occur for sales to minors or for marketing activities inconsistent with state laws, such as unlicensed dispensaries.

Yet DEA raids continued and even accelerated, and while the feds have made no effort to seek to challenge state laws even in Colorado and Washington, where recreational marijuana was legalized by voters, it has continued to arrest and prosecute growers and distributors, including those in medical marijuana. 

Moreover, the Obama administration’s back-off on patients might not be honored by a future president after the next election, unless Congress clarifies its language. The current bill just signed into law only prohibits federal funds from being spent on actions to prevent states from implementing their own medical marijuana laws—which might be interpreted to mean court actions seeking to overturn laws that legalized medical marijuana in more than half the states.  It says nothing specifically about prohibiting arrests of individuals who are complying with state law, while violating the federal ban on all marijuana use, including medical marijuana use, that remains on the books.

For those who believe it’s high time that the federal government stop spending taxpayer dollars arresting and prosecuting medical marijuana patients, their doctors and growers in compliance with state laws, this measure likely does not go far enough to assure safety from federal enforcement.  If the intent of Congress is to provide protection to individuals who use or provide medical marijuana in states that have legalized the practice, then Congress should enact clarifying legislation that explicitly prohibits federal enforcement against these individuals in states that have voted to legalize medical cannabis.