Medical marijuana patients and the providers who serve them can breathe a little easier, at least until March of next year.
A current law that prevents the Department of Justice and Drug Enforcement Administration (DEA) from interfering with state medical cannabis laws was set to expire next month, but Congressional Republicans are likely to extend the provision — and other lapsing federal funding laws — at least until March 31, 2017.
For the past two fiscal years, the Justice Department and DEA have been unable to spend any money on efforts to impede the implementation of state medical cannabis policies, thanks to strong bipartisan votes in Congress. The resulting provisions — small paragraphs in lengthy funding laws — have been used by medical marijuana dispensaries to have their cases thrown out of federal court.
But the protections are temporary, applying only to specific years’ appropriations bills, and must be re-enacted annually. The current funding bill is set to expire on December 9, but on Thursday it was reported that House and Senate leaders are zeroing in on a plan to pass a short-term extension funding the federal government through next March.
If, as expected, policy riders like the medical marijuana language are included, it means that people following state laws will be protected from federal harassment for at least part of the presidency of Donald Trump. And that could help set the stage for a continuation of the policy on a longer-term basis.
Here’s how the measure appears in the current fiscal year’s bill:
Sec. 542. 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, 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, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin, or with respect to either the District of Columbia or Guam, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
In August a federal court ruled — over Justice Department objections — that the provision doesn’t merely block the U.S. government from stopping states from passing their own medical marijuana laws but also prevents federal prosecutors from going after patients and providers who are operating in accordance with those local policies.
But the three-judge panel of the U.S. Court of Appeals for the Ninth Circuit made it clear that the protections provide only temporary relief. They wrote:
“DOJ is currently prohibited from spending funds from specific appropriations acts for prosecutions of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow. Conversely, this temporary lack of funds could become a more permanent lack of funds if Congress continues to include the same rider in future appropriations bills.” [Emphasis added.]
Advocates began 2016 feeling confident they’d be able to enact the amendment again. After all, huge bipartisan majorities of the House of Representatives are on record in support. In 2014 the measure passed 219-189. Last year the margin of victory grew to 242-186.
And this year the Senate Appropriations Committee approved the amendment by a vote of 21-8.
But due to unrelated disputes over gun policy and the right of transgender people to access public bathrooms, Republicans began locking down the amendment process before the Justice Department bill made it to the House floor. Whereas appropriations legislation is typically brought to the floor under open rules through which any member can offer almost any amendment as long as it’s germane to the overarching bill, leadership began bringing bills forward under structured rules so that only certain approved amendments could be considered.
In June, for example, the House Rules Committee blocked floor votes on amendments concerning marijuana businesses’ access to banking services and Washington, D.C.’s ability to spend its own money legalizing and regulating cannabis sales.
Advocates weren’t sure whether Congressional leaders would include the medical marijuana provision in the final funding bill or FY2017 during the post-election lame duck period. But they just got more time to make their case, and the new Congress that is seated in January is likely to be significantly more friendly to cannabis law reform than the current one.
Trump himself repeatedly pledged over the course of the presidential campaign to respect state marijuana laws. And while he personally opposes full legalization, he has talked about how he knows people who benefit from medical cannabis, which he says he supports “100 percent.”
While there is significant concern among advocates that an ardent cannabis opponent like New Jersey Gov. Chris Christie or former New York City Mayor Rudy Giuliani could be named attorney general and might convince the president-elect to change his mind on the issue, attempting to overturn broadly-supported state marijuana policies would be an enormous distraction from other agenda items the new administration will be more focused on. It is also possible that Trump could name U.S. Sen. Ted Cruz of Texas to lead the Justice Department. Cruz, while personally opposing legalization, said on numerous occasions during the course of his own presidential campaign this year that he would respect state laws.
But for now, it seems that the existing medical marijuana protections will extend into part of next year, and advocates will likely be in good position to make the case to include the language in a longer-term bill come March.
Photo Courtesy of Allie Beckett.
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