As patients and recreational cannabis consumers celebrate the wave of legalization sweeping the nation, federal authorities continue to apply whatever pressure is available to them to prosecute both individuals and marijuana-related businesses.
In May 2014, an amendment to an appropriations bill, Section 538, was introduced to Congress by Dana Rohrabacher, a Republican from California and Sam Farr, a Democrat from the same state. Prohibitionist opponents of the amendment and the Department of Justice (DOJ) at the time said that it would, “…in effect, limit or possibly eliminate the Department’s ability to enforce federal law in recreational marijuana cases….”
However, in an internal Department of Justice memo obtained by Marijuana.com, the Department stated that “This suggestion, which was intended to discourage passage of the rider, does not reflect our current thinking.” Andy Harris, a Republican from Maryland who is staunchly opposed to cannabis legalization of any type, said, “The amendment as written would tie the DEA’s hands beyond medical marijuana.”
The amendment, which passed, was intended to barr the DOJ from using federal funds to “prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Unfortunately, based on the Department’s reversal in its interpretation of the language of the amendment, it claims that it prevents interfering only with states, not individuals or businesses.
According to the Justice Department, the law prevents it “from impeding the ability of States to carry out their medical marijuana laws, not from taking actions against particular individuals or entities, even if they are acting compliant with State law.”
However, this clearly isn’t the spirit of the law. In April, Rohrabacher and Farr sent a letter to then-Attorney General Eric Holder to clarify their position and the intent of the law. “As the authors of the provision in question, we write to inform you that this interpretation of our amendment is emphatically wrong.”
The letter stated:
“The implementation of state law is carried out by individuals and businesses as the state authorizes them to do so. For the DOJ to argue otherwise is a tortuous twisting of the text…and common sense and the use of federal funds to prevent these individuals and businesses from acting in accordance with state law is clearly in violation of Rohrabacher-Farr.”
Despite a request from Rohrabacher and Farr to the inspector general of the DOJ for an investigation, the Department has stood firm in its “new” interpretation of the law. The memo obtained by Marijuana.com states that the only effect of the Rohrabacher-Farr law is to stop the DOJ from pursuing cases in which “the State or state officials are a party.” This means that, unless a state is officially involved in such a case, the DOJ believes that it is simply doing its job by enforcing federal-level prohibition.
The defiance of the DOJ, clearly illustrated by its strong pre-passage talking points regarding how the bill would “limit or possibly eliminate” its ability to enforce federal law concerning marijuana prohibition, smacks of convenient fear-mongering designed simply to thwart its passage. Now that the bill is law, the DOJ is engaging in the unsportsmanlike (and arguably illegal) behavior of re-interpreting its language.
According to Rohrabacher and Farr, the Department is defying the spirit of the law each time it seeks to prosecute an individual or business in a state where medical or recreational cannabis is legal. Will new Attorney General Loretta Lynch step in and discipline the Department? Or will she maintain the status quo, either by officially supporting the defiance of the DOJ or simply looking the other way?