The Shifting Limits of Obama's Marijuana Tolerance

At The Daily Caller, Mike Riggs reports that President Obama is standing by his nominee to head the Drug Enforcement Administration, Michele Leonhart (now the acting administrator), despite objections from drug policy reformers dismayed by her continued enthusiasm for medical marijuana raids. That much is not surprising. But I confess that I was startled by the reply of an unnamed Justice Department official to criticism that the raids violate both an Obama campaign pledge and an October 2009 DOJ memo telling federal prosecutors to lay off medical marijuana patients and providers:

"I wouldn't say the memo 'discourages' certain raids," a DOJ offical told TheDC. Rather, "it talks about prioritizing resources most efficiently." And both the White House and the DOJ argued that the gist of the Holder memo was that the DEA would "not focus its limited resources on individual patients with cancer or other serious diseases."

That gloss blatantly misrepresents what the memo said (PDF):

As a general matter, pursuit of these [drug law enforcement] priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.

The only reasonable reading of this paragraph is that it "discourages" (without completely prohibiting) "certain raids." Furthermore, the instructions are not limited to "individuals with cancer or other serious illnesses"; they apply to all "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana," including "caregivers"—i.e., people authorized by state law to supply patients with marijuana. As I've noted before, the memo leaves wiggle room: "As a general matter" implies exceptions, and so does "unlikely to be an efficient use of limited federal resources." Most important, disputes about exactly what constitutes "clear and unambiguous compliance" with state law (especially in California) can be used as a pretext for raids. But the new "cancer patients only" line implies that even licensed and regulated medical marijuana providers in jurisdictions that explicitly permit production and distribution—such as Maine, New Jersey, Rhode Island, Colorado, and New Mexico—are vulnerable to federal seizure, arrest, and prosecution. If the Justice Department's forbearance is limited to patients, the DEA might even decide to raid dispensaries in Washington, D.C., which will be operating under a law that Congress implicitly approved by declining to override it.

That position is at odds not only with the 2009 memo but with Obama's promises on the campaign trail, which were not limited to patients. In a March 2008 interview with Oregon's Mail Tribune, for example, he said, "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue." Two months later, when another Oregon paper, Willamette Week, asked Obama whether he would "stop the DEA's raids on Oregon medical marijuana growers [emphasis added]," he replied, "I would, because I think our federal agents have better things to do."

The view expressed in the Daily Caller piece also contradicts what Attorney General Eric Holder said in June 2009 about New Mexico's dispensaries:

Holder, speaking in Albuquerque during a meeting focused on border issues, including drug trafficking, said his department is focused "on large traffickers," not on growers who have a state's imprimatur to dispense marijuana for medical reasons.

"For those organizations that are doing so sanctioned by state law, and doing it in a way that is consistent with state law, and given the limited resources that we have, that will not be an emphasis for this administration," Holder said.

If the administration's official position is now that dispensaries are fair game regardless of what state law says, Obama and Holder are even more full of shit than I thought.