Included within the 1,603 pages of the recently-passed federal omnibus spending bill was the following paragraph:
“Sec. 538. None of the funds made available in this Act to the Department of Justice may be used, in 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.”
This language was part of an amendment sponsored by Rep. Dana Rohrabacher (R-CA) and Rep. Sam Farr (D-CA), and it represents the culmination of decades of work by medical cannabis advocates from across the nation. Rohrabacher first submitted a similar amendment in 2003 in an effort to assuage the concerns of legislators and public officials that implementing medical cannabis laws would expose them to federal prosecution.
Immediately after the passage of the spending bill, exuberant headlines proclaimed that this language meant the end of U.S. ban on medical marijuana. In reality, the wording of Section 538, when carefully parsed and considered in the light of the still-prevailing federal opposition to the production, sale, and use of this plant, leaves considerable room for continued federal anti-pot enforcement even in the listed states.
Clearly, lawsuits and similar actions against state governments in medical marijuana states are de-funded, hence effectively prevented, under this rider. And the intent of the rider to protect patients and providers was made clear in several floor speeches this year by the bill’s sponsors and supporters. For example, this testimony from co-sponsor Farr in May 2014 provides a clear summation of the bill’s intent:
“This is essentially saying, look, if you are following state law, you are a legal resident doing your business under state law, the feds just can’t come in and bust you and bust the doctors and bust the patient. It is more than half the states. So you don’t have to have any opinion about the value of marijuana. This doesn’t change any laws. This doesn’t affect one law, just lists the states that have already legalized it only for medical purposes, only medical purposes, and says, ‘Federal government, in those states, in those places, you can’t bust people.’”
However, it is difficult to imagine Section 538 providing a defense against federal prosecution to individual actors operating (or appearing to operate) outside the parameters of their state’s existing medical cannabis regulations.
For example, California still lacks a statewide regulatory framework for medical cannabis production and distribution. In Maine, one segment of the medical market is strictly regulated while another is not, so it is difficult to see how the language of Section 538 will prevent selective federal raids on providers; such raids will not “prevent” these states from “implementing… laws that authorize the use, distribution, possession, or cultivation of medical marijuana .”
Another caveat to remember is that this is an annual spending bill. If next year’s spending bill does not include a similar rider, whatever respite Section 538 might offer to legal providers and certified users of medical cannabis in the 32 named states and the District of Columbia could become merely a recess or “time-out,” after which aggressive federal enforcement may resume.
Still, Section 538 represents a victory for activists, who have worked for decades to achieve this level of federal recognition of the therapeutic value of cannabis. Patients and advocates must keep the pressure on our federal legislators to expand protections against federal interference in medical marijuana states.
The rider may also have beneficial ripple effects—remember that its original intent was to calm the fears of state officials who were hesitant to implement medical cannabis regulations. The passage of this bill, like the DOJ memo of August 2013, may embolden legislators and regulators in states that do not yet have medical cannabis laws to take action and implement good laws. (This is particularly important in states which do not allow the citizens initiative process.) And the promise of less-aggressive federal enforcement may further encourage the banking industry which has thus far been extremely wary of providing services to state-legal medical marijuana businesses.
Section 538 is clearly a milestone on the path toward a sane federal policy on medical marijuana. It’s also a marker that shows we have a long way yet to travel.