Marijuana Law, Policy, and Authority

Congress Renews DOJ Spending Rider

Posted by on Wednesday, March 28, 2018 in News, Updates.

The $1.3 trillion budget Congress passed on March 23, 2018 included a rider that continues to bar the DOJ from enforcing the federal marijuana ban in some circumstances. It is identical in substance to the Rohrabacher-Farr (or Rohrabacher-Blumenauer) amendments Congress has passed each budget cycle since 2014 (see book pages 353-358). The latest rider will expire at the end of the federal government’s current fiscal year, September 30, 2018.

Here is the text of the rider:

SEC. 538. None of the funds made available under 4 this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

In United States v. McIntosh, the federal Ninth Circuit Court of Appeals interpreted the quoted language to bar the DOJ from prosecuting individuals who manufacture, distribute, or possess marijuana in strict compliance with state medical marijuana laws. McIntosh is discussed in the book on pages 353-357. For reasons explored in the Notes and Problems following that decision (see pages 357-358), McIntosh left many questions unanswered. For example, could the DOJ still prosecute a state-licensed marijuana supplier who commits a minor violation of state law, like the possession of one too many cannabis plants? Because Congress simply copied the language of earlier riders, those questions will remain unanswered for the time being.

Like most legislation, the latest rider represents a compromise. On the one hand, many supporters of recreational legalization had hoped that Congress would broaden the measure to cover state-authorized activities related to recreational and not just medical marijuana. On the other hand, Attorney General Jeff Sessions—a staunch opponent of legalization—had asked Congress to omit the spending restriction from the latest budget altogether. See Sessions Asks Congress to Undo Medical Marijuana Protections. Congress choose instead to stay the course.

As far as I can tell, there’s only one difference between the original (2014) rider and this latest one: the states listed in the rider has grown over time. The 2014 measure listed only 33 states (including D.C.). The 2018 measure lists 47 states (including D.C.), and it also lists Guam and Puerto Rico. Arkansas, Georgia, Indiana, New York, and Ohio were among the states added to the list. Only Idaho, Kansas, Nebraska, and South Dakota remain off the list. While it would have been simpler for Congress to refer to “all states”, I suspect that Senators or Representatives from the omitted jurisdictions objected to the rider and wanted their respective states left off the list. Each of the omitted states, after all, either continues to prohibit medical marijuana or, at most, allows for very limited use of CBD; hence, federal enforcement is unlikely to upset local policies.

For those interested in reading the entire (1,000 pages+) Consolidated Appropriations Act, you can see it in its full glory here. The language quoted above can be found on page 240, in Title II, Division B, which deals with appropriations for the DOJ.

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