To date, two key factors guiding federal cannabis enforcement have been the Department of Justice’s “Cole Memo” (Cole memo) and the Rohrabacher-Farr amendment. While the appointment of Jeff Sessions to head the Department was not an encouraging sign, there is still federal interest in cannabis reform, especially among the group of lawmakers again proposing the “Respect State Marijuana Laws Act.”
COLE MEMO
The Cole memo, released in 2013, outlined Department of Justice priorities for enforcement of the Controlled Substances Act with regard to state-legal cannabis. It states that the Department should prioritize the most significant threats: distribution to minors, gang and cartel activity, and cannabis use in association with other crimes. This was the main guidance on enforcement of federal cannabis laws until Congress stepped in with the Rohrabacher-Farr amendment.
ROHRABACHER-FARR AMENDMENT
In 2015 Congress passed the Rohrabacher-Farr amendment as part of its appropriations bill. The amendment prohibits the Department from spending funds to prosecute individuals for conduct that complies with their state’s medical marijuana laws. In 2016, the Department tested the reach of the amendment, and, much to the delight of the Rep. Rohrabacher (R-CA), the Federal Court of Appeals for the Ninth Circuit affirmed that the Department cannot pursue prosecutions that violate such budget restrictions.
Congress renewed the amendment in 2016, and it remains in effect until April 28th, 2017. Congressional renewal before then will be crucial for maintaining the current restriction on federal prosecution against state-legal medical cannabis.
HR 975: HOPE FOR RECREATIONAL CANNABIS?
Unfortunately, the Rohrabacher-Farr amendment only concerns medical cannabis. Moreover, as we recently discussed, the Trump administration has indicated it may choose a more aggressive approach with respect to recreational cannabis.
While states like California prepare to fight any federal crackdown, a group of fourteen legislators (seven Democrats and seven Republicans) are advocating for massive change at the congressional level. Last month, Rep. Rohrabacher introduced HR 975: the “Respect State Marijuana Laws Act of 2017.” The bill would add the following language to the Federal Controlled Substances Act:
“Notwithstanding any other provision of law, the provisions of this subchapter related to marihuana shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana.”
Rep. Rohrabacher couches his argument for HR 975 along states’ rights lines:
“Admittedly, my personal preference would be to lift the Federal Government’s prohibition on marijuana entirely. However, I understand that this approach would be a nonstarter for many of my colleagues, which is why I have promoted an approach that simply gives the States and their residents the room they need to take a different approach to this issue, should they choose to take that different approach.”
The effect of such a change would be enormous. Currently, 28 states and Washington, D.C., have some form of legalized cannabis but have no long-term assurance against enforcement of the federal ban, especially if the Rohrabacher-Farr amendment lapses. The bill would end much of the confusion stemming from the conflict between state and federal laws. Perhaps most importantly, it would bring us one step closer to enabling financial institutions to work with cannabis businesses.
Now, for the reality check: the chance of Congress passing such a historic bill is remote at best, especially with a Republican-controlled Congress and the federal government’s general dysfunction. Rep. Rohrabacher introduced versions of the bill in 2013 and 2015 as well, but neither made it out of committee. The 2017 bill is currently awaiting review by the House Judiciary and House Energy and Commerce committees.
Even so, HR 975 represents a glimmer of hope and reflects the bipartisan support for cannabis legalization. Notably, HR 975 has greater support out of the gate than either the 2013 or 2015 versions, which, respectively, had five and eleven original sponsors. Even if it never sees a vote on the House floor, the support it receives will be a useful data point on where we are in the fight to end the federal cannabis prohibition.
See here for guidance on how to contact your elected officials concerning HR 975 (and any other issue).
