Clearing the Haze: Rohrabacher Amendment Does Not Change Federal Policy Regarding Medical Marijuana

Notwithstanding current news reporting to the contrary, the medical marijuana industry should not rely on the Rohrabacher amendment to preclude enforcement of federal drug laws. Before those in the medical marijuana industry get too excited about the Rohrabacher amendment, the fine print needs to be closely examined. On May 29, 2014, by a vote of 219-189, the House of Representatives added an amendment sponsored by Rep. Dana Rohrabacher (R-CA) to the Fiscal Year 2015 Commerce, Justice, Science Appropriations Act that would bar the Justice Department (including the DEA) from preventing “States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The Washington Times incorrectly reported that the amendment would “halt federal prosecutions of medical marijuana in states that have legalized the drug’s use with a doctor’s prescription.” Similarly, The Los Angeles Times reported that the measure “would prohibit the Drug Enforcement Administration from busting state-licensed medical marijuana operations.” Notwithstanding these reports, the Rohrabacher amendment does nothing to prevent the DEA from enforcing federal drug laws, namely the Controlled Substances Act (CSA).

The Rohrabacher amendment is a funding limitation, which means that if enacted it would restrict the federal government from spending congressionally appropriated funds on any federal activity which would “prevent” states from “implementing” their own medical marijuana laws. The federal government does not do that now and has no plans to do so. Although, states engage in various regulatory activities which the federal government does not now disturb, a federal CSA takedown of a medical marijuana distributor that is regulated under state law does not “prevent” a state from “implementing” their own medical marijuana law. Such a takedown may be contrary to the purpose or spirit of the state law, but it does not prevent or interfere with any state government activity. In short, the Rohrabacher amendment does not prevent the DEA, U.S. Attorneys, or other Department of Justice officials from fully enforcing the CSA.

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Published In: Conflict of Laws Updates, Constitutional Law Updates, Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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