Marijuana

No Congressional Couch Lock: State Medical Marijuana Laws Protected Through September 30th

The Rohrabacher-Blumenauer Amendment can still be used as a shield for medical marijuana providers... for now.

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State implementation of medical marijuana laws are safe from interference from the Department of Justice until September 30th of this year. In a highly anticipated move, Congress extended the protections of the well-known “Rohrabacher-Blumenauer Amendment” (the “Amendment”) last week. This action, important politically and legally, comes after Attorney General Jeff Sessions threw the state-legal cannabis industry into a fit when he rescinded the Obama-era Cole Memo — he has provided further guidance since then, but it’s not very illuminating for state-legal marijuana businesses. But what impact does the Amendment really have? It could be significant over the coming months, though I am sure Sessions and other U.S. Attorneys may seek to undermine the spirit of that law as time goes on.

The Amendment first passed back in 2014, and has been consistently renewed and extended by Congress in the form of budget riders (and this last one is around 2,200 pages). The Amendment has been construed as stopping the federal government from prosecuting medical cannabis operators acting in full compliance with state law, but no court outside of the Ninth Circuit has interpreted it. The Amendment states that:

None of the funds made available under 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.

On its face, the law only precludes the DOJ from spending funds to “prevent” any of the foregoing states “from implementing” their medical cannabis laws. However, in the Ninth Circuit, as a result of the McIntosh case, the Amendment has teeth. In that case, the court ruled in favor of medical cannabis providers who disputed the Department of Justice’s enforcement of the federal Controlled Substances Act against them in their respective states (all of which have legalized medical cannabis) due to the Amendment. In doing so, the court affirmed Congress’s intent to halt federal enforcement measures against medical marijuana providers in states that have legalized and regulated it. To date, this ruling represents the highest judicial approval of that legislation as an effective means of curbing federal crackdowns on state-legal medical marijuana programs. Nonetheless, the court made clear that its ruling only applies to medical cannabis operators. And the court remanded the cases back the lower courts to investigate whether the appellants were, in fact, in full compliance with their states’ laws regarding medical cannabis. Notably, the DOJ didn’t appeal this ruling to SCOTUS, and it also dropped another major case — the Harborside Health Center forfeiture case that had raged on for years — after the McIntosh ruling.

Clearly, to avail yourself of the protections of the Amendment in the Ninth Circuit, you must be on the medical cannabis side and you must be in complete compliance with your state’s medical cannabis laws and regulations. While the McIntosh and Harborside cases show us that the Amendment can be used as a shield, those cases took place before Jeff Sessions took the helm at the DOJ (and, in case you missed it, Sessions is a major marijuana hater).

Whether the Amendment will be interpreted as strongly in other U.S. district and/or circuit courts (or even by SCOTUS) in the future remains to be seen. At the same time, Sessions has already asked Congress in the past not to renew the Amendment, which Congress has repeatedly ignored. In 2015, prior to McIntosh, the DOJ had instructed its personnel regarding arguments to use against a cannabis operator that tried to raise the Amendment as a defense. Just because the Ninth Circuit didn’t agree doesn’t mean that other circuits won’t. Given that Sessions recently called for U.S. Attorneys to seek the death penalty for drug dealers of all kinds, I am confident that the DOJ is not going to lay down for use of the Amendment in court so long as Sessions has any kind of influence.

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Hilary Bricken is an attorney at Harris Bricken, PLLC in Los Angeles 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 hilary@harrisbricken.com.

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