Marijuana’s funky legal status in the United States.

A lot of people are confused about the status of marijuana in the United States. Some states seem to legalize it pretty broadly (Alaska, Colorado, Oregon and Washington), while others permit possession and use for medical purposes (e.g., Rhode Island, the District of Columbia, and Massachusetts).

To add to that confusion, marijuana remains illegal under federal law.

Here’s the deal: on the federal level, most marijuana-related activities (like owning it, growing it, selling it) are illegal due to the Controlled Substances Act.

However, the legislative branch voted to prevent the executive branch from enforcing the Controlled Substances Act (i.e., the law that the legislative branch itself passed). Back in 2014, the United States Congress was putting together a $1.1 trillion spending bill. Congress voted to approve an amendment to the spending bill which provided that

None of the funds made available in this Act to the Department of Justice may be used, with respect to [33 states]to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

This little paragraph is known as the Hinchey-Rohrabacher amendment. It had been introduced way back in 2003, but was voted down for several years, then not even put up for a vote for a few years (2008 through 2011), then it passed for the first time in 2014.

(A chart I made that looks like it has gone through the jpeg compression algorithm fifty times.)

After it was accepted for the first time in 2014, it expired briefly, then was renewed again pursuant to the budget deal reached in December of 2015. (In the most recent version of the amendment, the list of states grew to forty.)

The meaning of that little paragraph isn’t quite clear. A paranoid reader might ask a couple questions like:

  1. Can the Department of Justice use funds from sources other than the budget to prevent states from implementing their own state laws?
  2. When it says that the Department of Justice can’t stop states from “implementing their own State laws,” does that really stop them from arresting and prosecuting individual offenders?
  3. This amendment says that the Justice Department can’t use budgeted funds to interfere. What about other departments?
  4. Does everyone know I’m stoned right now, and will I be high forever?

Here are my answers:

  1. In theory, yes, they could use other funds to crack down on state-compliant operations. However, the Department of Justice’s funding doesn’t appear to come from anywhere but the federal budget.
  2. At least one federal court ruled that enforcing federal law against state-law compliant operations would be tantamount to preventing states from implementing their own medical marijuana laws. The case had to do with a California medical marijuana dispensary. In 1998 the federal government sued the dispensary for violating the Controlled Substances Act and obtained a court order to shut it down not long thereafter. The dispensary defied the court order for more than a decade, and kept racking up losses in court as it fought off the U.S. government’s various attempts to take everything the dispensary owned. Just as the hammer was about to finally fall (I guess, it seems kind of weird that it didn’t fall sometime in the prior decade), the Hinchey-Rohrabacher Amendment passed. The dispensary asked the Court what that meant, and the Court said, “it means federal law enforcement has got to leave you alone, even though you already lost a bunch of times and have been defying this Court’s order.” That’s the law in California, but your mileage may vary in a different part of the country.
  3. I’m not aware of anything like the Hinchey-Rohrabacher Amendment that prohibits any other federal department from using the money they get from Congress to crack down on violators of the Controlled Substances Act. The Department of Justice is just one out of fifteen different federal departments. Other departments also have money, guns, and the power to make your life miserable. National Review reports that the Department of Agriculture, the Railroad Retirement Board, the Tennessee Valley Authority, and the U.S. Fish and Wildlife Service all have SWAT teams, and Heritage notes that the Department of Education has one as well. It’s harder to imagine that any of these departments have jurisdiction over a state-law compliant medical marijuana operation, but the U.S. government has no shortage of creative attorneys. On the other hand, eventually they’d have to hand the matter over to the Department of Justice to prosecute you.
  4. Yes. A new marijuana study says that everyone knows you’re high, and you’ll likely be stoned forever.

Oh, also, you may have noted that the Hinchey-Rohrabacher Amendment (which will expire sometime this year in any event, unless it is renewed) only prevents the Justice Department from using appropriated funds to interfere with state efforts for legal medical marijuana. In other words, the U.S. government could crack down on recreational operations any time that it pleases. Right now it isn’t due to a quasi-official policy that lets states go forward with sales so long as they work to meet such goals as eliminating illegal diversions, preventing youth access to marijuana, and keep it off federal property, et cetera. That could change at any time.