Just in time for the new year, Congress last week renewed the language from Section 538 of the 2014 Cromnibus to ensure that the feds cannot continue wasting federal money in pursuing enforcement against medical marijuana. Again, this renewal is being heralded as the end of federal cannabis prohibition. But that is not entirely true.  The MMJ defunding provision of the Rohrabacher-Farr Amendment at Section 538 of the 2014 Cromnibus reads as follows:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, [every other medical marijuana state], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

As we’ve previously blogged, the key words here are “. . . to prevent such States from implementing their own State laws.” The sponsors of this Amendment have always maintained that its intent is to completely stop the DOJ from going after medical marijuana patients, providers, and

Suppose they gave a drug war and nobody came?
Suppose they gave a drug war and nobody came?

businesses in states with medical marijuana laws. Of course, the DOJ has a completely different interpretation of the Amendment and has even gone to great lengths to instruct its attorney employees on how to defeat the use of the Amendment in court if it’s ever used by an MMJ defendant. The DOJ’s position is that this Amendment only means that the DOJ cannot spend money on trying to stop states from implementing medical marijuana laws, but it remains free to prosecute MMJ operators in accordance with the federal Controlled Substances Act.

In practice, federal courts have produced mixed rulings on how to interpret Section 538. In the Kettle Falls Five case, a federal judge did not hesitate to throw out a Section 538 defense, siding with the DOJ’s interpretation of the new law. And the same thing happened in the Ninth Circuit of Appeals when a California medical marijuana dispensary operator tried to argue Section 538 meant that IRC 280e shouldn’t be applied to his business operations. But then, in October of this year, federal judge Charles R. Breyer of the Northern District of California ruled that Section 538 indeed “. . . prohibits the Department of Justice from expending any funds in connection with the enforcement of any law that interferes with California’s ability to implement [its] own State law[] that authorize[s] the use, distribution, possession, or cultivation of medical marijuana.”

Though Section 538 may have sharper teeth than originally thought, it’s indisputable that not every federal judge is going to agree with Judge Breyer’s opinion on it, and even that ruling is presently on appeal before the Ninth Circuit Court of Appeals. Still, Rohrabacher-Farr lives on through this Congressional appropriations renewal, providing litigators with additional opportunities to seek to expand its protections in federal court. But as far as actually ending the federal government’s war on medical marijuana, we are still a far cry from such a significant development and it is going to take a lot more than a lone amendment to a spending bill for us to get there.