Last week’s House vote against federal interference with state laws allowing medical use of marijuana was a big deal politically, reflecting growing Republican support for federalism in this area. But it’s not clear that the amendment, assuming it is included in the appropriations bill approved by the Senate and signed by the president, will accomplish what its backers hope. Here is the text of the amendment, which was introduced by Rep. Dana Rohrabacher (R-Calif.):
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, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
Prior to the vote on the amendment, Rep. Sam Farr (D-Calif.), chief co-sponsor, summed up its purpose this way:
This is essentially saying, look, if you are following state law, you are a legal resident doing your business under state law, the feds just can’t come in and bust you and bust the doctors and bust the patient. It is more than half the states. So you don’t have to have any opinion about the value of marijuana. This doesn’t change any laws. This doesn’t affect one law, just lists the states that have already legalized it only for medical purposes, only medical purposes, and says, “Federal government, in those states, in those places, you can’t bust people.”
Yet if the Drug Enforcement Administration (DEA) arrests a patient in Colorado for growing marijuana and the U.S. attorney prosecutes him, that does not, strictly speaking, “prevent” that state from “implementing” its law decriminalizing cultivation of cannabis for medical use. The DEA and the U.S. attorney are enforcing the federal ban on marijuana; they are not compelling Colorado to punish behavior its voters have decided to no longer treat as a crime. Arguably the same could be said for raids on state-licensed dispensaries, although enough of those would shut down commercial distribution of marijuana to patients, effectively preventing the state from implementing its law aimed at giving patients an alternative to home cultivation.
There is even more room for interpretation in states, such as California and Washington, where the legal status of businesses distributing medical marijuana is unclear. In those cases federal officials maintain that dispensaries are not authorized by state law, while state and local officials disagree among themselves about what the law allows. Which reading of the law does the Rohrabacher-Farr amendment require the feds to follow?
During a telebriefing on Friday, Farr seemed to acknowledge that it leaves some wiggle room for the Justice Department. “This isn’t a finely written policy yet,” Farr said. “This is a statement of congressional intent that [the] DEA [should] back off on these issues. We will have to continue to reconcile federal policy with state policy.” Still, he said, “this had strong, bipartisan support,” and “the language, I think, is very simple and very clear, and that makes it a lot easier to implement. We’ll always have oversight as to implementation.” Bill Piper of the Drug Policy Alliance added that “legislative intent matters,” and “I think intent was very clear from the excellent floor speeches.”