Medical marijuana advocates have been jubilant for the last few days because of Congress’s move to disallow the Department of Justice from enforcing federal law in medical marijuana states. How did this happen and what does it really mean?
Congress passes annual appropriations (spending) bills to fund the federal government, including the activities of all agencies in the executive branch of government. These large bills are made up of individual funding bills, so they are known as “omnibus” appropriations bill. This year, buried in Section 538 of the appropriations bill, Congress included this:
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.
The Drug Enforcement Agency, which has been the bane of medical marijuana patients and cultivators for years, is an agency within the Department of Justice. Though we are not experts on the federal budget or on whether there are ways that the DEA and DOJ can get around this, the plain reading of this section is that the DEA can no longer use federal funds to make raids or arrests based on medical marijuana conduct.
First, this is a sea change for places like California that have unregulated medical marijuana industries. Since August 2013, the Department of Justice has maintained the position that it would leave alone marijuana businesses in states that regulated sufficiently to protect against several federal government priorities, but it has made no promises to stay away from states that did not have comprehensive marijuana regulations in place. This spending bill did not include any language about state regulations; it just says that there needs to be a state law that “authorizes the use, distribution, possession, or cultivation of medical marijuana.” This could well prove to be a boon to marijuana entrepreneurs in states like California that have yet to adopt a real regulatory system for medical marijuana.
Second, the verbs used are interesting. The spending bill talks about the use, distribution, possession, or cultivation of medical marijuana. The Federal Controlled Substances Act refers to those that “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” The key word there is manufacture. It would be a real stretch for the Department of Justice to argue that certain types of marijuana processing are “manufacturing” and not “cultivation,” therefore they could still enforce against them. That argument does not hold a lot of water, but we do not put anything past the DEA and its goals to maintain current systems of prohibition.
In the end, this bill is a big step. Apart from screwing D.C. voters on recreational marijuana, it is the most positive piece of marijuana legislation to come from Congress (by far) since we started our cannabis law practice in 2010. Nonetheless, we are taking a wait and see approach on how the DEA and the Department of Justice, but we are hoping that they accept this with open arms.
One final caveat: this is just an annual spending bill. It does not change the Federal Controlled Substances Act. If something like Section 538 does not make it into next year’s appropriations bill, medical marijuana can again be a target. More permanent legislation is still necessary to legalize medical and recreational marijuana on the federal level, so now is not the time to relax and declare victory.