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 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.

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  1. Surprise, surprise, surprise.

    /Gomer Pyle

  2. I wouldn’t have expected anything different from an agency of lawyers trained to pervert the law.

  3. This is just what I thought was going to happen with that amendment. I read it the same way DOJ is reading it now.

  4. The CSA is unconstitutional on its face. Any federal agent persecuting any person for using medical marijuana, (or any other drug, for that matter) is not acting with any legal authority at all.


    1. I think the CSA is a monstrous law, but unconstitutional on its face?

      1. In a sane world, it’s unconstitutional on its face. It’s why, after all, FedGov had to pass a constitutional amendment to ban alcohol instead of just passing a law. Nothing in the Constitution gives them permission to do this. But thanks to the expansion of the commerce clause since the Warren court to mean “Whatever FedGov wants to do, it’s fine”, it’s probably “constitutional”.

        1. I think the feds could probably prohibit interstate commerce in drugs, but I agree the wrong side won in Raich. Making ‘between the states’ mean ‘and within the states’ is probably the craziest holding SCOTUS has given us this side of Dred Scott.

  5. “Zero chance” ?

    How about a column on what is holding up rescheduling?

    1. FYTW doesn’t make for much of an column

  6. But Obama cares. I am so glad that people have had a chance to vote for a black man for President. It has made such a difference in things like this.

    1. Obama’s feckless and it’s not like he does these things out of anything like principle, but it is true that his is the first administration post-CSA to take an official position of OK-ing states legalizing marijuana, a stance that has allowed the legalization to really take off and get an institutional foothold. And it’s not like he hasn’t taken heat over it from the GOP (see the current lawsuits by Nebraska and Oklahoma’s GOP AGs over the feds position).

      1. Yes he doesn’t give a fuck and does as little as possible on the issue even though he is perfectly willing to ignore the law and inflict grievous damage on Congressional and state level Democrats on issues he cares about.

        Thanks for reenforcing my point.

        1. It’s still more than any GOP administration has done.

          1. But less than what the law passed by the GOP controlled Congress demands. All you are saying is Obama has done less than the law requires but that is okay because it is still more than the GOP Presidents did when doing anything required completely ignoring federal law.

            There really isn’t any point no matter how embarrassingly stupid you are not willing to make in trying to defend Obama. It is just comic and sad.

            1. When a President makes public statements favoring something that every administration in the past made public statements against, it’s actually a big deal regardless of the actions they then follow up with (that’s the bully pulpit, and for a recent example, look at how support for gay marriage went over the top when Obama [again, admittedly fecklessly] publicly changed his stance). The Obama administration went further and actually issued official positions that played a large part in legitimating legalized marijuana and allowing it to get official footholds in state policies. Have they been slipshod in standing by their positions? Yes. But don’t act like the changing of them in the first place didn’t mark a sea change. You’re against everything Obama does or says so of course you can’t admit this.

              1. The Obama administration went further and actually issued official positions that played a large part in legitimating legalized marijuana and allowing it to get official footholds in state policies.

                Are crediting the Obama administration for policies developed at the state level long before Obama changed his mind about medical and recreational marijuana?

                1. I’m crediting him with being the first administration to give public and official cover for the changes.

                  There’s a pretty wide range of things he, like the administrations before him, could have done to block these changes at levels beyond continued prosecutions, and he didn’t do that. That was literally a sea change.

                  1. It’s not a “sea change” when his actions oppose his words. The man’s a liar.

                    1. “It’s not a “sea change” when his actions oppose his words. The man’s a liar.”

                      Rhetoric matters when we’re talking about a public figure and a public debate that until then was all one way. Ronald Reagan’s small government rhetoric accompanied continued increases in government spending under his watch, but it did mark a wonderful sea change in politics. Today’s Tea Party wouldn’t exist without it, for example. You could say ‘Reagan was a liar’ or you could, like me, see the glass half full: before Reagan you basically had two parties whose lines were ‘I’m going to spend, spend, tax and tax’ and ‘We will too!’ The debate changed with him even if he didn’t live up to his rhetoric.

              2. I don’t give a crap what he says, quite frankly. The DOJ part of the Executive Branch. President Obama is their boss. He could stop this. But he doesn’t.

                All words, no action.

                1. “All words, no action.”

                  Yes and no. Of course his actions don’t just fall short of his words, they contradict them at times. But words alone matter when we’re talking about a bully pulpit and a subject that was for so long kept out of the public debate almost altogether, and there’s also actions not taken that could have been taken that matter. He could have acted to block even the official state level actions implementing legalization, like Bush II did with assisted suicide when states legalized it under his watch.

                  1. Words matter, but not in the way you think they do. The fact that he talks out of both sides of his mouth here is worse than if he just rejected marijuana wholesale. It creates an untenable situation where respect for the law is at odds with what even the President says is right.

                    I don’t give a crap what people say. The marijuana legalization train was rolling with or without his support. His actions only make things worse.

            2. And I love this line: “But less than what the law passed by the GOP controlled Congress demands”

              Given the overwhelming support from the GOP on the bill:

              “the Rohrabacher amendment passed the House last May with support from 219 members, including 49 Republicans. “

  7. When Obama hears about this, he’s going to be very upset. And, oh boy, I can’t wait until Congress slaps down the DoJ for purposefully misinterpreting its legislation!

    1. If it is not in the newspaper, how is Obama supposed to know about it? And in fairness, Obama is the most incompetent chief executive in the history of the nation. There is at least a decent chance that he doesn’t even understand that he can do anything about this even if he knows about it, which is unlikely.

  8. “has just 14 cosponsors”

    Good to see Amash and Massie in there (Polis too).

  9. Congress needs to start impeachment proceedings. Maybe that would help the DOJ find a better interpretation of the law.

    1. The problem is that Reason itself noted when the rider passed that the language of the law lends itself to this interpretation.…..t-actually

      It’s Rohrabacher’s Respect State Marijuana Laws Act that deals with the matter squarely.

      1. So what, Congress has the power to remove bureaucrats that pervert its will as expressed through legislation.

  10. It’s time for the DOJ to stop slaying windmills.
    We’d all be better off if the police would focus on crimes that have actual victims.
    Does anyone, other than those who pad their pockets from prohibition, honestly believe that wasting $20 Billion and arresting 3/4 Million Americans annually for choosing a substance scientifically proven to be safer than what the govt allows, is a sound policy?

    1. Sure, it keeps tens of thousands of worthless people employed.

  11. “A better approach is embodied in Rohrabacher’s Respect State Marijuana Laws Act”

    Given the debate tonight it really should have been pointed out that Rand Paul is the Senate co-sponsor for the bill (not to take anything away from Rohrabacher’s important efforts on this).

  12. They need to start impeaching the bureaucrats that write memos like this one.

  13. Now, isn’t that sweet… another example how the enforcers will parse the English language to keep their jobs. IMO if the DOJ interpretation were challenged in federal court, the DOJ would lose because the intent of the amendment was clear. We consume a lot of taxpayers’ money quibbling over what words mean, heat that would be avoided if we’d just legalize the stuff.

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