Let’s start with some good news.

Medical Marijuana is safe for the time being. Section 537 of the Consolidated Appropriations Act of 2017 prohibits the DOJ and the DEA from using any funds in the bill to prevent states from “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

https://www.congress.gov/bill/115th-congress/house-bill/244/text

In August of 2016, an appeals court upheld that the 2016 version of this act did prevent the DOJ from prosecuting medical marijuana cases in affected states. This means that federal authorities can’t prosecute patients, caregivers, and businesses that are acting in compliance with state medical marijuana laws. Robert Capecchi, director of federal policies for the Marijuana Policy Project, recently said “Congress appears to be growing increasingly comfortable with states adopting their own marijuana policies, unfortunately, spending prohibitions like these expire at the end of the fiscal year, so there is still a need for a long-term solution.”

Ok so the good news we started with does come with a caveat. Medical Marijuana is protected until September 30th when the fiscal year ends. Then congress will have to pass a new budget and we will have to make sure to hound our representatives to include similar protections! Ok so great news until then. Let’s enjoy it for now.

Wait…wait…what about recreational marijuana? Yea that’s right. We’re on very shaky ground with recreational marijuana and the eight states that have it are gearing up for a fight. Let’s take a look at some of the options they are considering and the heroes in marijuana’s corner.

One of the biggest thorns in the DOJ’s side is going to be a familiar who’s already stuck them once. Washington Attorney General Bob Ferguson (who also led the states in challenging Trump’s executive order on immigration – and won, twice) noted in a statement that he and Governor Jay Inslee are prepared to defend the state’s legal marijuana system.

The DOJ would have several options if it decided to enforce the law, including filling lawsuits on the grounds that state laws regulating pot are unconstitutional because they are pre-empted by federal law. Criminal law expert and University of Washington professor Trevor Gardner, during a Seattle panel about presidential power in modern politics in early February, explained that he believes local marijuana laws would be difficult for the federal government to challenge. Some of the reasons he gave include:

• The federal government does not have ability to direct state and local police
• Of 1.2 million law enforcement agents, only 80,000 are operating at federal level, which means in order for federal government to broadly enforce marijuana prohibition it needs to cooperation of state and local police. The DOJ prosecutes after arrests have been made by state and local police. 
• In the event Sessions does not have that cooperation, it will be difficult for them to prosecute and enforce the marijuana prohibition broadly in decriminalization states.  

Both federal and state legislators are stepping into the ring in California. Congressional Representative Dana Rohrabacher (R – Costa Mesa) plans to introduce legislation that could blunt the threat by preventing the DOJ from enforcing federal laws against recreational use of marijuana in states that have legalized it.

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