Congress Did Not Repeal the Ban on Medical Marijuana

Yesterday I argued that it's not clear whether a rider aimed at stopping federal harassment of medical marijuana patients and their suppliers will accomplish that goal. The provision, introduced by Rep. Dana Rohrabacher (R-Calif.) and included in the omnibus spending bill passed by Congress last week, bars the Justice Department from spending money to "prevent" states or the District of Columbia from "implementing" laws allowing medical use of cannabis. I am not sure exactly what that means, but I am pretty sure it does not mean what the Los Angeles Times claims it means in a story headlined "Congress Quietly Ends Federal Government's Ban on Medical Marijuana":

Tucked deep inside the 1,603-page federal spending measure is a provision that effectively ends the federal government's prohibition on medical marijuana and signals a major shift in drug policy.

The bill's passage over the weekend marks the first time Congress has approved nationally significant legislation backed by legalization advocates. It brings almost to a close two decades of tension between the states and Washington over medical use of marijuana.

Under the provision, states where medical pot is legal would no longer need to worry about federal drug agents raiding retail operations. Agents would be prohibited from doing so.

The Obama administration has largely followed that rule since last year as a matter of policy. But the measure approved as part of the spending bill, which President Obama plans to sign this week, will codify it as a matter of law.

The Rohrabacher amendment is a welcome indication that many members of Congress, including a sizable number of Republicans, are inclined to let states set their own marijuana policies, and it may indeed deter federal prosecutors from targeting patients and suppliers who comply with state law. But it clearly does not end the federal ban on marijuana, which makes no distinction between medical and recreational use. Even if the rider affects enforcement of that ban in the 23 states with medical marijuana laws, it has no impact in the other 27. Nor does it necessarily end tension between the federal government and states that let patients use marijuana for symptom relief.

First, the rider expires at the end of next September and may or may not be renewed. Second, federal prosecution of particular growers or dispensaries does not, strictly speaking, prevent states from implementing their medical marijuana laws, since it does not force states to punish activities they have decided to stop treating as crimes. Third, even if we read the rider as prohibiting raids, arrests, prosecutions, and forfeiture actions aimed at people complying with state law, who those people are remains a matter of dispute in California and other states that do not explicitly allow dispensaries. In those states, where the rules for supplying medical marijuana remain fuzzy, people do still "need to worry about federal drug agents raiding retail operations."

Finally, the Justice Department is not the only source of tension in this area. The Rohrabacher amendment has no impact on actions by the IRS or the Treasury Department that make it difficult for medical marijuana suppliers to pay their taxes and obtain banking services. Solving those problems will require changing the statutes those agencies are charged with enforcing.