The Federal Ban on Medical Marijuana Was Not Lifted

Some observers got carried away when Congress renewed the Rohrabacher-Farr amendment.

Contrary to what you may have read or heard, Congress did not quietly lift the federal ban on medical marijuana. Nor did it lift the ban loudly. It did not lift the ban at all. Here is what actually happened.

In December 2014, Congress approved an omnibus spending bill that included a rider prohibiting the Justice Department (which includes the Drug Enforcement Administration) from using funds appropriated by that bill to "prevent" states from "implementing" their medical marijuana laws. The same rider, sponsored by Reps. Dana Rohrabacher (R-Calif.) and Sam Farr (D-Calif.), was included in the omnibus spending bill approved by Congress last month. That means it will remain in force for another fiscal year.

On both occasions, various news outlets exaggerated the impact of the Rohrabacher-Farr amendment, leading many medical marijuana supporters to mistakenly believe Congress had legalized it. Los Angeles Times reporter Evan Halper led the way last year with a story headlined "Congress Quietly Ends Federal Government's Ban on Medical Marijuana." Halper reported that the rider "effectively ends the federal government's prohibition on medical marijuana" and "brings almost to a close two decades of tension between the states and Washington over medical use of marijuana." He said states that allow medical use of marijuana "no longer need to worry about federal drug agents raiding retail operations," because "agents would be prohibited from doing so." As I pointed out at the time, that was, at best, an overoptimistic take. 

Halper was not alone in overselling the rider. "The War on Medical Marijuana Is Over," a Medical Daily headline proclaimed. "Congress Ends Federal Government's Ban." In the article below the headline, reporter Lecia Bushak said the Rohrabacher-Farr amendment "will effectively end the federal government's ban on selling or using pot for health reasons in states where it's legalized."

After this month's vote renewing the Rohrabacher-Farr amendment, several websites, including Lost Coast Outpost, Daily Kos, and Inquisitr, cited Halper's 2014 article as if it were new, recycling enthusiastic quotes from politicians and activists that he used then. "Federal Ban Lifted on Medical Marijuana," said the Inquisitr headline. "Congress Quietly Ends Federal Ban on Medical Marijuana," the National Pain Report announced. eNews Forest Park reported that the amendment "effectively ended the federal ban on medical marijuana."

Halper himself is taking a more cautious view of the rider now that it has been passed a second time. "A year after Congress voted to end war on medical pot," says the headline over a story he posted last week, "raids continue in California." Although Halper still claims "Congress effectively lifted the federal ban on medical marijuana a year ago," he concedes that "marijuana legalization advocates are conflicted over how big a victory the congressional vote, which was repeated this month, has turned out to be." He notes that "federal prosecutors continue to pursue cases" against medical marijuana providers, which makes it sound as if the federal ban that supposedly was lifted actually remains in place.

One reason the Rohrabacher-Farr amendment did not work as advertised is that the Justice Department refuses to interpret it the way Rohrabacher and Farr do. It is clear from the debate that preceded the House vote on the amendment in May 2014 that supporters and opponents of the rider both thought it would bar prosecution of people who grow, possess, or distribute medical marijuana in compliance with state law. But as I predicted last year, the Justice Department argues that prosecuting medical marijuana suppliers or seizing their property does not "prevent" states from "implementing" their laws.

Before the Rohrabacher-Farr amendment was approved, the Justice Department warned that it would undermine marijuana prosecutions throughout the country. After the rider was enacted, the DOJ suddenly decided the provision had no impact at all on cases against private individuals or businesses, although it might prevent the department from challenging state medical marijuana laws in federal court or prosecuting state officials who regulate growers and retailers.

Rohrabacher and Farr have repeatedly complained that the Justice Department's position violates the clear intent of Congress. Last October, in a forfeiture case involving the Marin Alliance for Medical Marijuana (MAMM), a federal judge in California agreed. "It defies language and logic for the government to argue that it does not prevent California from implementing its medical marijuana laws by shutting down these…heavily regulated medical marijuana dispensaries," said U.S. District Judge Charles Breyer. He ruled that "the plain reading of the text of Section 538 [the Rohrabacher-Farr amendment] forbids the Department of Justice from enforcing this injunction against MAMM to the extent that MAMM operates in compliance with California law."

Breyer's ruling, which the Justice Department is appealing, at this point applies only to MAMM. Even if the U.S. Court of Appeals for the 9th Circuit agrees with Breyer, it might still leave room for federal prosecutors to target medical marijuana suppliers, because whether a dispensary complies with state law may be a matter of dispute. That is especially true in states like California, which does not explicitly authorize the sale of medical marijuana. (Under legislation that takes effect in 2018, the state will start licensing and regulating dispensaries, a function that so far has been left to local governments.) Although you might think that "implementing" a medical marijuana law entails deciding who complies with it, U.S. attorneys prefer to make that call themselves. 

Assuming the Rohrabacher-Farr amendment does ultimately affect enforcement of the federal ban on marijuana in states that allow medical use, that is not the same as eliminating the ban. The rider has no practical impact in the 27 states that do not currently allow cultivation of medical marijuana (although two of them, Florida and Texas, plan to allow production and distribution of low-THC cannabis oil). Furthermore, the rider applies only to the Justice Department, so it has no effect 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.

More fundamentally, the amendment, which has to be renewed every fiscal year, does not change the Controlled Substances Act (CSA), which continues to classify marijuana as a Schedule I substance with no legal uses. Because marijuana is still prohibited by federal law, people who grow and sell it, no matter the purpose and regardless of their status under state law, commit multiple felonies every day. If no one is trying to put them in prison right now, that is only thanks to prosecutorial forbearance that may prove temporary.

Anyone who provides services to marijuana businesses is implicated in their lawbreaking. Last week a Colorado credit union that wants to specialize in serving state-licensed marijuana businesses tried to persuade a federal judge that it is legally entitled to participate in the Federal Reserve's payment system, without which it cannot operate. The judge did not seem inclined to agree, saying, "I would be forcing the reserve bank to give a master account to a credit union that serves illegal businesses." The U.S. Postal Service announced last month that periodicals containing marijuana ads are "nonmailable," citing a CSA provision that makes it a felony to place ads promoting the purchase of illegal drugs. An accounting firm and a bonding company hired by a Colorado marijuana merchant recently paid $70,000 to settle a federal racketeering suit filed against them by a hotel whose owners were upset about plans to open a pot shop near their business. 

Problems like these cannot be solved without changing marijuana's status under federal law. The Rohrbacher-Farr amendment does not do that, no matter how many hopeful headlines it generates.

This article originally appeared at Forbes.com.

[This article has been revised to note that Florida and Texas plan to allow production and distribution of low-THC cannabis oil.]