Will the Rohrabacher Amendment Actually Block Federal Prosecution of Medical Marijuana Patients and Their Suppliers?



As I noted last week, the same end-of-the-year omnibus spending bill that includes a rider aimed at preventing marijuana legalization in Washington, D.C., also includes a rider aimed at preventing the Justice Department from interfering with laws allowing medical use of cannabis. But as with the anti-pot rider, it's not clear that the medical marijuana provision will achieve what its backers hope. Here is the language of the latter rider, which was introduced by Rep. Dana Rohrabacher (R-Calif.) and approved by the House last May:

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. 

The Drug Policy Alliance describes this provision, versions of which Rohrabacher has been championing since 2003, as "language prohibiting the U.S. Justice Department from spending any money to undermine state medical marijuana laws." Similarly, the Marijuana Policy Project says Rohrabacher's amendment "prohibit[s] the U.S. Justice Department—which includes the DEA—from interfering with state-level medical marijuana laws." But actions that could be described as undermining or interfering with medical marijuana laws do not necessarily "prevent" states from "implementing" those laws, which is the actual language used in the bill.

Consider the case of the Kettle Falls Five, medical marijuana users in Washington who were indicted for various federal drug crimes even though their garden seemed to comply with state law. This case already appears to contradict Justice Department policy, which says prosecution of such individuals is probably not a good use of DOJ resources unless their actions implicate federal law enforcement priorities. Perhaps Michael Ormsby, the U.S. attorney who brought the case, plans to argue that it does involve one or more of those priorities. He also may claim that Larry Harvey and the four other defendants were not really complying with state law. But even if he makes neither of those claims, threatening the Kettle Falls Five with prison terms ranging from 10 years to life does not, strictly speaking, prevent Washington from implementing its medical marijuana law, which carves out exceptions to the state ban on cannabis.

If Ormsby had tried to force the state to prosecute Harvey et al., that would clearly run afoul of the Rohrabacher amendment (as well as the Constitution). But continuing to enforce the federal ban on marijuana in states that allow medical or recreational use of the drug, while it may undermine the goals of those laws, does not not render them ineffectual. No matter what federal prosecutors or drug agents do, residents of those states no longer face state penalties for specified marijuana-related activities (which in practice means their risk of legal trouble has been dramatically reduced). In that sense these states have not been stopped from implementing their laws.

The impact of the Rohrabacher amendment is even more doubtful when it comes to medical marijuana dispensaries in states that do not explicitly allow them. Those states include California, where dispensaries operate as patient cooperatives, as well as Washington, where dispensaries take legal refuge under a provision allowing patients to establish "collective gardens." In other states, dispensaries are run by groups of "caregivers," each supplying several patients. Opinions about the legality of such arrangements vary, so a federal prosecutor can always argue that a given grower or seller was not in fact complying with state law.

However the language of the Rohrabacher amendment is interpreted, the intent of its backers is pretty clear. Here is how Rep. Sam Farr (D-Calif.), who co-sponsored the amendment with Rohrabacher, put it in a floor speech last May:

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."

The week after the House approved the amendment, I asked Farr whether the language is as clear as he implied, and he seemed to acknowledge that it leaves some wiggle room for the Justice Department. "This isn't a finely written policy yet," he 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, director of national affairs at the Drug Policy Alliance, added that "legislative intent matters," and "I think intent was very clear from the excellent floor speeches."

I hope Farr and Piper are right. An early indication may be what happens with the Kettle Falls Five. The trial, which has been rescheduled repeatedly, is currently supposed to start on February 23. The case is even more anomalous now that recreational growers and retailers are openly operating in the very city where the trial is to be held, licensed by the state and tolerated by the feds. If Ormsby drops the case or (more likely) agrees to a deal that lets the defendants escape prison, that could be a sign he has heeded congressional concerns about federal meddling.