Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, March 4, 2020

Noting how blanket federal prohibition serves to thwart continued progress of medical marijuana reforms

This new Roll Call article, headlined "States turn to unenforced federal law to slow medical marijuana legalization," effectively reviews how federal prohibition still serves to impact medical marijuana reforms efforts in a number of states.  I recommend the lengthy article in full, and here are excerpts:

Since 2014, Congress has protected patients and cannabis programs from federal marijuana prosecutions in states that allow it for medical use. Medical marijuana’s unique legal status involves a little-known provision called the Rohrabacher-Farr amendment that Congress renews every year in spending laws. It says the Justice Department cannot use federal funds to prevent states from implementing their own medical marijuana laws.

Yet marijuana’s continued status as a Schedule I substance — the most severe drug category — remains fodder for those opposed to legalizing medical marijuana in other parts of the country.... In states considering the issue this year, including Alabama and Tennessee, opponents continue to cite the drug’s Schedule I status.

In Tennessee, House Speaker Cameron Sexton, a Republican, said in January that he won’t take up medical marijuana because “it’s against federal law.” A commission created by the Alabama Legislature to advise lawmakers on cannabis policy last year recommended that the state adopt a medical marijuana plan this session, and it published draft legislation to do so. But opponents on the commission said the top reason for their objections was “the fact that marijuana remains a Class I Controlled Substance under state and federal law.”

Alabama Attorney General Steve Marshall inflamed debate further in January when he wrote a letter in opposition to legislators. “State laws that allow any use of marijuana, medical or recreational, are in direct conflict with duly enacted and clearly constitutional law,” Marshall wrote. “Thus, state marijuana statutes enacted in violation of the law are damaging to the law itself.”...

Such arguments underscore why Congress is considering a number of bills to deschedule marijuana entirely or reschedule it in order to better study it. They face long odds in the Senate, which has yet to move on a House-passed bill that is limited to offering protections for banks that do business with marijuana companies.

But advocates for legalization say federal prohibition is a red herring, and that states shouldn’t have to comply with a federal drug law the Drug Enforcement Administration is barred from enforcing. “States are authorizing conduct that is prohibited under federal law, so at first blush, I can see how this could be confusing and surprising, but at this point, two-thirds of the country have implemented comprehensive medical marijuanalaws,” says Karen O’Keefe, state policy director for the Marijuana Policy Project, a pro-legalization advocacy group that lobbied for the Rohrabacher-Farr amendment. The rider halted most raids involving medical marijuana in states with legalization.

The patients and providers who cultivate, process and dispense the cannabis these patients rely on in these states for the treatment of debilitating illness do not have to fear federal charges as long as they are in compliance with state law, says Sean Khalepari, regulatory affairs coordinator for the pro-medical marijuana group Americans for Safe Access.

But the unusual nature of the provision is not well understood, some say.... Although the amendment serves as a shield against federal prosecution, “I think it can be misunderstood that this rider does not in and of itself legalize medicinal marijuana at the federal level,” says Jeffrey Vanderslice, who worked as an aide to Rohrabacher in 2014. Since the Justice Department technically retains the ability to prosecute medical marijuana — even in states that have legalized it, if a business or individual doesn’t comply with state law — advocates are hoping for more certainty on the federal level eventually.

Meanwhile, the Trump administration’s interpretations and actions have contributed to the confusion. In 2018, the administration rescinded guidance by the Obama administration known as the Cole memorandum, which directed Justice to deprioritize prosecuting state-legal marijuana businesses. Trump’s reversal stoked worry and confusion among supporters of legalization.

The office of the attorney general has since turned over from Jeff Sessions, a severe critic of marijuana, to William Barr. Barr said during a Senate hearing in 2019 that he operates under the Cole memo, but leaves significant discretion to U.S. attorneys in each state. Meanwhile, the White House has sought the repeal of Rohrabacher-Farr in each of its budgets, including in Trump’s fiscal 2021 budget proposal. Congress has always bucked that recommendation.

https://lawprofessors.typepad.com/marijuana_law/2020/03/noting-how-blanket-federal-prohibition-serves-to-thwart-continued-progress-of-medical-marijuana-refo.html

Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink

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