Federally Illegal, Yes – But…

A cannabis industry investor once asked me, “but it is illegal under federal law, right?”  Now as a lawyer and principal contributor to this website, I must warn that yes, the US Controlled Substances Act (the CSA) makes possession. use and sale of cannabis in any form illegal in the United States. That is the law.. have no doubt about it.  Federal prosecutors though may find they are limited in how much they can enforce the law in cannabis legal states.

That is settled, but what are the details of federal enforcement policy?

The Federal Budget

By its own action, the federal government cannot spend money to actually enforce the CSA against regulated activity under state law.  The Rohrbacher-Farr Amendment to the US Budget Act deprives the Justice Department of the funds necessary to enforce the CSA against lawful medical cannabis activities under state law.

US Attorney-General Jeff Sessions has alternatively condemned some and accepted other aspects of the Rohrbacher-Farr Amendment.  Sessions is a long-time opponent of legalized marijuana, even once quoted at saying that “good people don’t smoke marijuana”. It’s difficult to understand who the “good people” are he refers to or if that means people who do use marijuana simply are “bad”.  Sessions has condemned that wider use of cannabis is part of the “growing drug epidemic,” no doubt referring to the opiate abuse crisis. The facts are, that opiate abuse is less problematic where cannabis is legal under stage law. Lately though, Sessions has shown acceptance of Rohrbacher-Farr solely for medical marijuana use, but not for recreational use.

In August, a federal judge stopped the prosecution of a cannabis grower in Northern California citing Rohrbacher-Farr.   The willingness of a federal court to apply the amendment is a clear indication of its effectiveness. To the question then if cannabis is illegal under federal law then, the answer remains yes, but if operating legally under a state program, does it matter?  Time will only tell if other courts will follow the court in Northern California. For the moment there is some comfort that the CSA is limited for those operating legally under state law.

US Rep. Dana Rohrbacher reportedly uses marijuana legally under California law to relieve his arthritis pain.  Since 2002 he attempted to deprive the Justice Department from enforcing over state cannabis laws. Finally in 2014, it passed and became part of the US Budget.  In March 2016, it was added again and reluctantly accepted by President Trump. In September, the Congress will reconsider this as part of a new budget bill. Keep your eye on this space to see what happens.

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