Drugs, Marijuana

ICYMI: Ninth Circuit Rules DOJ Can't Stub Out Medical Marijuana Businesses

The ruling hows that even our country's highest courts will not just rubber stamp everything the federal government does against cannabis.

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Hilary Bricken

Hilary Bricken

Right on the heels of the DEA’s decision not to reschedule cannabis, the Ninth Circuit Court of Appeals threw a bone to medical marijuana businesses and patients in United States v. McIntosh. In a bit of a shocker, the Ninth Circuit ruled against the Department of Justice’s seeking to enforce the federal Controlled Substances Act against cannabis dispensaries. In doing so, the court reaffirmed Congress’s intent to halt federal enforcement measures against state-law compliant medical marijuana providers and entities in states that have legalized and regulated MMJ.

Since 2014, through appropriations riders, Congress has continued to prohibit the DOJ from using appropriated funds to pursue federal enforcement actions against state-compliant medical marijuana providers and businesses. The relevant language in the budget bills passed in 2014 and renewed in 2015 is:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

The question had been whether the federal courts would read this congressional language as a mandate stopping the DOJ from criminally prosecuting state-law compliant medical marijuana businesses. The Ninth Circuit’s ruling represents the highest judicial holding that this omnibus legislation does indeed curb federal crackdowns on state-legal medical marijuana programs.

The court did, however, articulate the following two important points significantly limiting the benefit of their ruling for many members of the cannabis industry (especially for those on the adult use side):

  1. The court’s ruling applies only to medical marijuana. No federal appellate-level court has directly endorsed, tacitly or otherwise, state-legal recreational cannabis markets. This implicates much of the cannabis community, especially as medical programs are set to yield to or merge into recreational programs in a number of states that have adopted medical cannabis reform.

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  1. The court ordered that the consolidated cases be remanded to the lower courts to investigate whether the appellants were, in fact, fully compliant with their states’ laws regarding medical cannabis. Compliance with state law is turning out to be the lynch pin for protection from criminal prosecution under these federal appropriation riders.

Despite its limitations, U.S. v. McIntosh is ultimately a favorable ruling for the cannabis industry, both medical and recreational. Quite simply, the DOJ’s enforcement of the federal Controlled Substances Act cannot occur without the necessary funds to do so and, in making its ruling, the Ninth Circuit Court of Appeals affirmed Congress’s intent to prohibit executive agencies from using appropriated funds for exactly that purpose.

Though a decidedly insufficient remedy for cannabis prohibition, this ruling reduces the risk of federal raids for state-law abiding medical cannabis businesses in those states within the Ninth Circuit’s purview. The ruling also shows that even our country’s highest courts will not just rubber stamp everything the federal government does against cannabis.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at [email protected].

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