The impact of state laws legalizing marijuana despite federal prohibition continues to grow and reverberate through the American political system from the bottom up.
In 1996, California became the first state to legalize medical marijuana. The federal government fought state legalization tooth and nail, spending billions on enforcement efforts and even winning a Supreme Court Case. Despite every federal effort to stop it, state legalization continued to expand. Today, more than two-dozen states allow for the medicinal use of cannabis, and four states have legalized it for general recreational use as well.
As more and more states have legalized marijuana, federal prohibition has crumbled. State action has nullified the federal ban in effect in more than half the country. Now the impact of state policy has rippled up to the federal level.
In 2014, Congress placed a provision in the Consolidated Appropriations Act providing that “[n]one of the funds made available … to the Department of Justice may be used … to prevent [various] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
This month, the Ninth Circuit Court of Appeals held that federal judges should uphold this provision in the appropriations act by halting prosecutions of people using marijuana legally based on their state’s laws.
“In sum, § 542 prohibits DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana….
“[By prosecuting state-authorized medical marijuana users,] DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws. By officially permitting certain conduct, state law provides for nonprosecution of individuals who engage in such conduct. If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.
“We therefore conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws…”
In simple terms, Congress has effectively prohibited federal prosecution of marijuana users whose actions comply with all relevant state medical marijuana laws – despite federal prohibition of marijuana. Of course, Congress could at any time reinstate funding, at which time prosecution could resume.
“Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”
But for the present time, medical marijuana users complying with state laws don’t have to worry about state or federal prosecution. Congress has tied the hands of federal prosecutors.
The court’s opinion highlights and important reality underlying state medical marijuana laws. They don’t “repeal” federal prohibition. As the judges make clear, the activities of medical marijuana users remain a federal crime.
“To be clear, § 542 does not provide immunity from prosecution for federal marijuana offenses. The CSA prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur.”
In fact, the last paragraph of the ruling throws down the federal supremacy trump card, claiming states can’t legalize something the illegal under federal law.
“Nor does any state law ‘legalize’ possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.]” [Emphasis added]
So, according to the politically connected lawyers on the Ninth Circuit, states cannot “actually authorize” medical marijuana.
But they have.
And Congress has tied federal prosecutors’ hands so they can’t even enforce federal law – despite the fact it remain in effect.
So, the bottom line is medical marijuana states have nullified federal marijuana prohibition in effect. All of the court’s “you can’t do that” rhetoric means nothing when the reality proves otherwise.
This reveals another important strategic truth. State and local actions bubble up through the political system. Congress would have never acted if states hadn’t taken action first. It was California’s willingness to simply ignore the federal law and go its own way that set this all in motion. It was other states following California’s lead until more than have of them had legalized medicinal cannabis that made this Congressional action happen.
The lesson: you are far more likely to change D.C. by changing Sacramento, or Baton Rouge or Albany than you are by direct action inside the Beltway.