Trump and Sessions Need to Take a Deep Breath (and Perhaps Inhale) When It Comes to Pot Regulations

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While there is much discussion and concern that the Trump administration will upset state law permitting medical and recreational marijuana use, there are numerous compelling arguments that any attempts can and should fail.

First, in December 2014, the United States Congress’ appropriations bill funding the federal government included the Rohrabacher-Farr amendment, which provides:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

This provision, known as Section 542, is included in subsequent appropriation bills.

Further, in United States v. McIntosh, the Ninth Circuit Court of Appeals concluded that § 542 prohibited the Department of Justice from spending funds on the prosecution of individuals who were engaging in conduct permitted by state law, provided that those individuals fully complied with the state law. In doing so, the Court explained that:

Congress has enacted an appropriations rider that specifically restricts DOJ from spending money to pursue certain activities. It is “emphatically … the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for … the courts to enforce them when enforcement is sought.” A “court sitting in equity cannot ‘ignore the judgment of Congress, deliberately expressed in legislation.’”

The Court further recognized Congress’ exclusive role in appropriating funds in accord with the United States Constitution, which provides the “straightforward and explicit command … that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.”

The McIntosh Court thereafter recognized the fundamental doctrines governing the separation of powers and statutory construction:

The Appropriations Clause plays a critical role in the Constitution’s separation of powers among the three branches of government and the checks and balances between them. “Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury.” The Clause has a “fundamental and comprehensive purpose … to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents.” Without it, Justice Story explained, “the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure.”

Thus, if DOJ were spending money in violation of § 542, it would be drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause. That Clause constitutes a separation-of-powers limitation that Appellants can invoke to challenge their prosecutions.

Applying these basic concepts, the Court concluded 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.”

Second, on August 29, 2013, the Deputy Attorney General James M. Cole issued a memorandum entitled “Guidance Regarding Marijuana Enforcement” (AKA the “Cole Memorandum”), which expanded upon the Guidance Memoranda issued in October 2009 and June 2011. The Cole Memo recognized that the DOJ has “limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way.”

Accordingly, the memo identified eight priorities for enforcement:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

The memorandum expressly defers to states to enforce their own laws governing marijuana with the “expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.” The Cole Memorandum further recognized that a state with a sufficiently “robust” regulatory system “is less likely to threaten the federal priorities set forth above.”

Third, Republican administrations consistently refer to “states’ rights” in legislative and policy decision-making. Generally speaking, the concept of states’ rights requires deference to states, permitting them to govern with their own discretion and limiting federal intrusion into local matters. The doctrine dates back to the Federalist Papers, in which Alexander Hamilton explained that while the Constitution’s Supremacy Clause dictates that federal law shall be the supreme law of the land:

…it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

Although the concept of “states’ rights” historically was used to defend racial segregation, in more recent times it has been relied upon to argue that the federal government should defer to states in matters concerning education, assisted-suicide, gun control, abortion rights, the death penalty and same-sex marriage, among others. Reasonably, therefore, proponents of states’ rights also must defer to states regarding cannabis regulation as well—just as the Cole Memo recommends.

Finally, and perhaps most compellingly, states are now dependent on the significant tax revenue generated from cannabis. These funds are directed toward infrastructure, education, housing and other critical areas. Depriving states of this revenue is, in effect, an unsubsidized state mandate—a concept typically deemed repugnant to Republican lawmakers.

Joshua S. Bauchner, Esq. is a partner with the law firm of Ansell Grimm & Aaron, PC where he is co-chair of the Litigation Department and head of the Cannabis Law Practice Group which may be followed @THCCounselors.

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