Marijuana and the Cromnibus: Let’s Not Get Too Excited

Last week we posted on the much-lauded provision in the federal Cromnibus that essentially de-funds federal enforcement of federal marijuana laws in medical marijuana states. This move by Congress has been celebrated as totally relieving MMJ users and producers of all worry that the feds might come after them. Esquire reported that “[u]nder the provision, federal funds can no longer be used by the Department of Justice to raid state-licensed retail operations.” The Huffington Post heralded the measure as a “historic” protection that would end raids of MMJ dispensaries and stop arrests of MMJ patients. Our own post similarly stated that the bill would “disallow” DOJ enforcement.

But after some internal discussion amongst the Canna Law Group attorneys, we have decided that our quickly produced proclamation may have been a bit too bold. So today we write to temper our enthusiasm for the Rohrabacher-Farr Amendment, to ensure our readers understand that it might not stop federal enforcement as everyone has hoped. (Just check out the comments to the NORML blog post on this subject to get an idea of how excited some people are about the Amendment, including some asserting that Congress has effectively de-scheduled cannabis.)

What is the source of our new-found skepticism? It is the language of the Amendment itself. We’ve quoted it before, but this is crucial to understanding the issue, so we quote it again:

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, [every other medical marijuana state], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

The key words are to prevent such States from implementing their own State laws. Though it is clear what the amendment’s sponsors thought it would do, a court (or federal agency, for that matter), interpreting the plain language of the law (which is the starting point for statutory interpretation) might not believe that prosecuting violations of federal law has anything to do with preventing the “implementing” of state law. At minimum, there’s a lot of wiggle room in the language such that a lead DEA investigator hell-bent on going after MMJ businesses or patients might still do it. Why Rorhabacher chose this language is a mystery; we would be far more comfortable with a measure that flat out said no funds were available to “investigate” and “prosecute” those operating in compliance with state MMJ law.

Don’t get us wrong – we still believe that the Rohrabacher-Farr Amendment is a very significant step forward. A majority in Congress has approved a relaxation of federal drug policy, and that’s nothing to sneeze at, particularly with the current dysfunctional legislature. But readers please beware that this might not be the magic bullet everyone is hoping for.