Many people are under the mistaken impression that the US Department of Justice is no longer allowed to prosecute cannabis cases in California. While it is true that DOJ prosecutions have declined dramatically during the Obama years, it is wrong to think that the DOJ is required to hold off on cannabis prosecutions in the future.
The case that everyone has been hearing about, US v. McIntosh, 833 F.3d 1163 (9th Cir. Cal. 2016) was decided by the Ninth Circuit Court of Appeals in August 2016. In that case, the court was called upon to decide whether medical cannabis defendants in cases being prosecuted by the DOJ could rely on the defense that Congress has cut the DOJ’s funding for prosecuting medical marijuana cases.
Here’s the backstory. Congress has been unwilling to face up to the medical benefits of cannabis. In a rational world, lawmakers would recognize that marijuana has medicinal value and would legalize medical marijuana. That has not happened in the US Congress. Even during the most liberal period of the Obama administration, Congress declined to legalize medical cannabis. In other words, according to the US Code, possession and sale of medical cannabis are crimes. Nevertheless, it is now widely acknowledged that cannabis provides medical benefits. Even though Congress has been unwilling to do the right thing and legalize medical cannabis, many members of Congress wanted to do something to improve the situation.
So Congress decided to cut any funding to the DOJ for medical cannabis prosecutions. They did this in 2014 by adding a rider to the annual budget that said: no money to the DOJ for medical marijuana prosecutions. In spite of the directive from Congress, the DOJ continued to prosecute medical marijuana cultivators and dispensaries, just as though Congress had done nothing. Remember, this was the Obama Department of Justice. Just imagine what the Trump Department of Justice will be like.
Defendants who were being illegally prosecuted by the Department of Justice tried to enjoin the prosecutions. Most of them lost at the trial court level. Federal trial court judges did not want to get into the middle of a fight between Congress and the DOJ. Almost all the trial judges let the prosecutions go forward.
The cases went up to the Ninth Circuit, sitting in Pasadena. The Ninth Circuit covers California and several other western states, and is generally considered the most liberal federal Court of Appeals in the country. In the McIntosh case, the Ninth Circuit ordered the prosecutions halted, ruling that the DOJ was legally required to abide by the directive of Congress. The Ninth Circuit effectively handcuffed the DOJ’s efforts to prosecute medical cannabis cases, and (as far as I know) all medical cannabis prosecutions on the West Coast have now stopped.
There are two problems, however. First, the Congressional budget restriction applies only to medical marijuana prosecutions. Congress has never cut funds for recreational marijuana prosecutions, and the DOJ can bring recreational marijuana prosecutions whenever it wants.
Second, the budget restrictions are attached to the budget. The budget only lasts for a limited time, typically a year. When the budget expires, so does the restriction on the DOJ. When a new budget is passed, the restriction has to be enacted all over again. The current budget is set to expire in April 2017. The new budget is probably going to contain a number of provisions proposed by the Trump administration, and at this writing, no one knows whether the rider prohibiting the DOJ from prosecuting medical cannabis will be in there.
The Ninth Circuit warned of this problem in the McIntosh case:
“The government had authority to initiate criminal proceedings, and it merely lost funds to continue them. DOJ is currently prohibited from spending funds from specific appropriations acts for prosecutions of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow.”
Where will the Republican Congress and the Trump DOJ go with cannabis prosecutions? No one knows, and speculation is rampant. One expert quoted by the New York Times suggests that the Trump DOJ will start off by suing the State of California to try to kill off Prop 64.
Other writers point to Trump’s campaign promises that he will maintain the status quo as to medical marijuana, and argue that he will probably let the states handle recreational marijuana however they want.
In the last Congress, Dana Rohrabacher, a Republican Congressman from California, introduced the Respect State Marijuana Laws Act, which would have explicitly prevented federal prosecutions that were contrary to state law. This bill, if it had passed, would have solved the problem. State laws on cannabis would preempt federal law, and the DOJ would not have the power to prosecute legal cannabis businesses in California or elsewhere. Of course, Congressman Rorhabacher’s bill went nowhere. It died in committee. No new bill has been introduced so far this term, although that could still happen.
Uncertainty in the law is bad. Businesses need to know what the law is. If the law is unclear, business risk increases. That means fewer businesses are willing to make major investments, which inevitably leads to higher prices to the consumer. The United States needs a national policy on cannabis that citizens can rely upon in the long term. That policy should be explicitly stated in the US Code. A temporary rule tacked onto the annual budget fails to fulfill a basic condition of good business regulation: long-term predictability.