The Justice Department's Embarrassing Medical Marijuana Switcheroo

The DOJ's narrow reading of a law protecting medical marijuana contradicts what it said last year.


Office of Dana Rohrabacher

Last year, before the House of Representatives voted on a spending rider prohibiting the Justice Department from trying to "prevent" states from "implementing" their medical marijuana laws, the DOJ warned lawmakers that the measure also would interfere with cases involving recreational use of cannabis. After the House passed the amendment and it became part of the omnibus spending bill enacted last December, the DOJ changed its mind. The department's current position is that the rider has no impact at all on its ability to prosecute medical marijuana suppliers who comply with state law or on its ability to seize their property.

That embarrassing switcheroo is revealed in a February 2015 memo that Tom Angell posted at Marijuana.com yesterday. The memo, written by Patty Merkamp Stemler, chief of the DOJ's Appellate Section, and addressed to "All Federal Prosecutors," says "the Department's position is that Section 538 does not bar the use of funds to enforce the CSA's criminal prohibitions or to take civil enforcement and forfeiture actions against private individuals or entities." Rather, the rider "prohibits the Department from preventing the implementation of State laws—that is, from impeding the ability of States to carry out their medical marijuana laws, not from taking actions against particular individuals or entities, even if they are acting compliant with State law."

Under this interpretation, the DOJ may not take action against state or local officials who license, regulate, or tax medical marijuana suppliers, even if those activities arguably run afoul of the Controlled Substances Act. Nor may the DOJ challenge medical marijuana laws in court by arguing that they are pre-empted by federal law. But it remains free to target growers and retailers, even if they comply with state law. It is even free to target individual patients who grow and possess marijuana for their own use. This reading of Section 538 contradicts what both supporters and opponents of the provision said about it before the House vote. As a footnote in the memo reveals, it also contradicts what the Justice Department was saying at the time: 

Prior to passage of the appropriations bill, the Department provided Congress with informal talking points addressing the amendment introduced by Rep. [Dana] Rohrabacher (which became Section 538). The talking points were consistent with the approach taken in this memorandum, with the exception that they warned that in states that permitted recreational marijuana, Rep. Rohrabacher's amendment could, "in effect, limit or possibly eliminate the Department's ability to enforce federal law in recreational marijuana cases as well." This suggestion, which was intended to discourage passage of the rider, does not reflect our current thinking.

No kidding. The DOJ went from saying the rider could completely block enforcement of the federal ban on marijuana in states that allow medical or recreational use to saying the rider has no effect on prosecution or forfeiture actions aimed at "private individuals or entities." But as the memo notes (quoting a Supreme Court opinion), members of Congress never should have believed what the DOJ said last year, since opponents of legislation, "in their zeal to defeat a bill…understandably tend to overstate its reach."

The DOJ's talking points nevertheless seem to have had an impact on the House debate, as Angell points out. Rep. Andy Harris (R-Md.) claimed the "amendment as written would tie the DEA's hands beyond medical marijuana," adding that "in a State like Maryland, which has medical marijuana, if we ever legalized it, the amendment would stop the DEA from going after more than medical marijuana." Rep. John Fleming (R-La.), similarly warned that the rider would "take away the ability of the Department of Justice to protect our young people."

But that was then. Once the rider became law, the DOJ realized it not only has nothing to do with recreational marijuana; it has no impact on cases involving medical marijuana either, except when it comes to the official duties of state or local regulators. Does that mean the feds could (if they had the resources) shut down every grower, raid every dispensary, and arrest every patient in a state that allows medical use of marijuana, all without being guilty of trying to "prevent" that state from "implementing" its law? After all, the state would still be free to issue licenses and regulations, although federal interference would make the exercise pointless and completely frustrate the law's aims. Stemler concedes "it is a closer question whether the statute would bar a wide-ranging, categorical policy of enforcement against individuals and entities that comply with State law."

Stemler adds that such a wholesale crackdown would in any event contradict current DOJ policy, which frowns on targeting state-licensed marijuana businesses unless their activities implcate "federal enforcement priorities" such as interstate smuggling or sales to minors. Given that policy, why is the DOJ insisting on a crabbed interpretation of Section 538 that is clearly contrary to what the measure's authors and supporters were trying to accomplish? Presumably because that interpretation allows U.S. attorneys to continue pursuing pre-existing cases against medical marijuana growers and sellers such as Charlie Lynch, Oakland's Harborside Health Center, and the Kettle Falls Five in Washington. The narrow reading also allows the DOJ to reverse course whenever it wants and take a harder line regarding state-legal marijuana suppliers.

The congressmen who introduced Section 538, Dana Rohrabacher (R-Calif.) and Sam Farr (D-Calif.), have repeatedly objected to the DOJ's interpretation, and last week they asked the department's inspector general to investigate what they view as the DOJ's failure to obey the law. Meanwhile, with the rider scheduled to expire at the end of the current fiscal year, the House voted in June to renew it, and the Senate Appropriations Committee followed suit. Since the language is unchanged, the dispute about what "implementation" of medical marijuana laws means is likely to continue even if the rider is extended.

A better approach is embodied in Rohrabacher's Respect State Marijuana Laws Act, which simply states that the federal ban on marijuana "shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana." In addition to clarity, that bill has the advantage of covering recreational as well as medical marijuana, and it also should help resolve the legal issues that make banks reluctant to serve state-licensed cannabusinesses. Its main disadvantage is that it's a stand-alone bill, rather than a rider attached to a must-pass spending bill, and seems too radical to attract much support. The bill, which Rohrabacher reintroduced in April, has just 14 cosponsors (including half a dozen Republicans), and GovTrack gives it a 0 percent chance of being enacted.