Congress Did Not Repeal the Ban on Medical Marijuana

Yesterday I

argued that it’s not clear whether a rider aimed at stopping
federal harassment of medical marijuana patients and their
suppliers will accomplish that goal. The provision, introduced by
Rep. Dana Rohrabacher (R-Calif.) and included in the omnibus
spending bill passed by Congress last week, bars the Justice
Department from spending money to “prevent” states or the District
of Columbia from “implementing” laws allowing medical use of
cannabis. I am not sure exactly what that means, but I am pretty
sure it does not mean what the Los Angeles
Times claims
it means in a story headlined “Congress Quietly Ends Federal
Government’s Ban on Medical Marijuana”:

Tucked deep inside the 1,603-page federal spending measure is a
provision that effectively ends the federal government’s
prohibition on medical marijuana and signals a major shift in drug
policy.

The bill’s passage over the weekend marks the first time
Congress has approved nationally significant legislation backed by
legalization advocates. It brings almost to a close two decades of
tension between the states and Washington over medical use of
marijuana.

Under the provision, states where medical pot is legal would no
longer need to worry about federal drug agents raiding retail
operations. Agents would be prohibited from doing so.

The Obama administration has largely followed that rule since
last year as a matter of policy. But the measure approved as part
of the spending bill, which President Obama plans to sign this
week, will codify it as a matter of law.

The Rohrabacher amendment is a welcome indication that many
members of Congress, including a sizable number of Republicans, are
inclined to let states set their own marijuana policies, and it may
indeed deter federal prosecutors from targeting patients and
suppliers who comply with state law. But it clearly does not end
the federal ban on marijuana, which makes no distinction between
medical and recreational use. Even if the rider affects enforcement
of that ban in the 23 states with medical marijuana laws, it has no
impact in the other 27. Nor does it necessarily end tension between
the federal government and states that let patients use marijuana
for symptom relief.

First, the rider expires at the end of next September and may or
may not be renewed. Second, federal prosecution of particular
growers or dispensaries does not, strictly speaking, prevent states
from implementing their medical marijuana laws, since it does not
force states to punish activities they have decided to stop
treating as crimes. Third, even if we read the rider as prohibiting
raids, arrests, prosecutions, and forfeiture actions aimed at
people complying with state law, who those people are remains a
matter of dispute in California and other states that do not
explicitly allow dispensaries. In those states, where the rules for
supplying medical marijuana remain fuzzy, people do still “need to
worry about federal drug agents raiding retail operations.”

Finally, the Justice Department is not the only source of
tension in this area. The Rohrabacher amendment has no impact on
actions by the IRS or the Treasury Department that make it
difficult for medical marijuana suppliers to
pay their taxes and
obtain banking services. Solving those problems will require
changing the statutes those agencies are charged with
enforcing.