Despite repeatedly pledging to respect state marijuana laws and saying he supports medical cannabis “100 percent” on the campaign trail, President Trump issued an ominous warning late last week that his administration might ignore a Congressionally-approved rider protecting state laws from federal interference.
The provision in question, which has been federal law since late 2014 and was renewed in an appropriations bill Trump signed into law Friday, prevents the U.S. Department of Justice from spending money to interfere with state medical marijuana programs.
But in signing the funding bill into law on Friday, the president added a “signing statement” indicating that he might not take the marijuana rider seriously:
“Division B, section 537 provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories. I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.”
The language is a bit murky, but presidents don’t go out of their way in signing statements to single out provisions with which they agree; rather, they typically use the tactic to highlight areas where they believe the legislature has impeded on executive authority.
In this case, Trump seems to be claiming that the prohibition on spending money to go after people acting in compliance with state medical cannabis laws interferes with his administration’s duty to enforce the federal marijuana laws that remain on the books.
While the statement isn’t a threat that a crackdown is indeed coming, it is a signal that the administration reserves the right to ignore the rider and raid, arrest and prosecute state-legal medical marijuana patients and providers despite Congress’s clear signal that they don’t want the federal government doing that.
If that happens, however, those defendants would likely have a strong case to make in federal court, and a key Republican lawmaker who is close to the Trump administration has already said he will have their backs.
Describing the president’s signing statement as “nebulous,” Congressman Dana Rohrabacher of California, the chief sponsor of the medical marijuana rider, said that its supporters “have other forces at play — legal forces.”
“If we have to take it all the way to the Supreme Court, we will win on this,” he said.
And Rohrabacher and allies are seemingly in a strong legal position. Last year, the U.S. Court of Appeals for the Ninth Circuit ruled that an earlier version of the rider indeed protected people using and distributing medical marijuana in accordance with state laws from federal prosecution.
That was in contrast with arguments made by the Obama administration’s Justice Department, which had claimed that the amendment provided no protections to people breaking federal marijuana laws but instead simply protected states themselves for enacting and implementing medical cannabis laws.
While the Ninth Circuit ruling technically only covers the nine states within its jurisdiction, the federal government has not sought to appeal the case to the Supreme Court.
Rohrabacher, speaking at a cannabis event at UC Irvine on Friday, added that he spoke with U.S. Attorney General Jeff Sessions, an ardent legalization opponent, about marijuana policy last week and that the two plan a more in-depth meeting to discuss the issue soon.
Sessions has also met with governors of states with broader marijuana legalization laws in recent weeks, indicating, the state officials later reported, that he would consult with them in more depth before launching a crackdown. Separately, the attorney general directed a task force to examine marijuana enforcement policies and issue recommendations by late July.
White House Press Secretary Sean Spicer referenced earlier spending bills’ riders in a February briefing, suggesting the White House understood that the provision bars enforcement against people following state medical marijuana laws.
“There’s a big difference between the medical use which Congress has, through an appropriations rider in 2014, made very clear what their intent was in terms of how the Department of Justice would handle that issue,” he said. “That’s very different than the recreational use, which is something the Department of Justice I think will be further looking into.”
He added that Trump “understands the pain and suffering that many people go through who are facing especially terminal diseases and the comfort that some of these drugs, including medical marijuana, can bring to them.”
During last year’s presidential campaign, candidate Trump went so far as a say he personally knows people who benefit from medical cannabis.
The current version of the medical marijuana rider — and the overall federal funding bill it is attached to — covers the rest of Fiscal Year 2017, which ends on September 30. Separately, Congressional appropriations committees are set to soon begin debating whether to add the state cannabis protections in Fiscal Year 2018 legislation.
Under current law, the rider reads:
“SEC. 537. None of the funds made available in this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
If the Department of Justice moves against people following state laws despite the Congressionally-approved prohibition on doing so, the government may have a tough time defending those actions in court, two experts with the Bipartisan Policy Center told Bloomberg.
“Part of the argument here in this signing statement is that [the president] has the constitutional requirement to execute the law,” the center’s Tim Shaw said. “But [the rider] is one of those laws, and Congress has the ultimate authority over funds getting spent.”
Steve Bell, Shaw’s colleague, added, “It is the constitutional prerogative of the Congress to spend money and to put limitations on spending. This is an extremely broad assertion of executive branch power over the purse.”