Lexology Report: Congress temporarily de-funds US-DOJ medical marijuana prosecution but does not legalize medical marijuana
- December 30 2014
In a few short paragraphs within the 1,603-page congressional spending bill signed into law on December 16, 2014, Congress prohibited the U.S. Department of Justice from using federal funds to prosecute users, growers and distributors of medical marijuana in states that have enacted medical marijuana statutes. The full text of the de-funding rider barring the DOJ from the use of funds to “prevent. . . implementation” of state and local laws legalizing medical marijuana states:
Sec. 538. 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.
Sec. 539. None of the funds made available by this Act may be used in contravention of section 7606 (“Legitimacy of Industrial Hemp Research”) of the Agricultural Act of 2014 (Public Law 113-79) by the Department of Justice or the Drug Enforcement Administration.
Several U.S. Supreme Court decisions have upheld prosecution of medical marijuana growers and users under the federal Controlled Substances Act (CSA). Nevertheless, the Obama Administration, as a matter of policy, has directed the DOJ to take a relaxed approach to prosecution and the DOJ has done so, except for use that impacts the DOJ’s “enforcement priorities” (e.g., preventing the distribution of marijuana to minors, preventing the revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels). This new de-funding measure now codifies that policy approach as law. (Notably, the rider does not affect IRS or Treasury Department actions relating to payment of taxes by marijuana suppliers and online banking).
The legislation, however, does not legalize medical marijuana. Rather, the federal ban on marijuana continues – i.e., both medical and recreational marijuana continue to be illegal under CSA Schedule I. And, though de-funding may affect enforcement of criminal laws in states with medical marijuana statutes, it has no effect in states that have not legalized marijuana, nor does it express any limitations on employer action on the basis of a positive marijuana test result administered under a workplace drug testing policy. Finally, the rider expires on September 30, 2015, and may or may not be renewed heading into the heart of the presidential election campaign in the fall of 2015. For all of these reasons, though significant in reflecting current legislators’ thinking at the national level regarding CSA enforcement, the mere enactment of the spending bill with this provision does not warrant adjustment to drug testing policies of employers choosing to continue to treat confirmed positive marijuana test results as positive even when the result was caused by medicinal use that is lawful under state or local law.