An amendment that would prohibit the Fed from interfering in state medical pot laws is still up in the air.By April M. Short
The GOP-controlled House surprised just about everyone when it voted 218 to 189 for a pro-medical marijuana amendment on Friday. The amendment, tacked onto the much larger criminal justice funding bill (H.R. 4660), would prohibit the Department of Justice (DOJ) from using federal taxpayer funds to interfere with medical marijuana laws in 22 states that have passed them.
The House vote was historic. It was the first time since the Marijuana Tax Act of 1937 that the majority of a chamber of Congress voted in favor of something that would alter national marijuana policy.
Unanswered questions linger about the amendment, however: Will the Senate allow the amendment to remain attached to the funding bill? Will it then acquire the necessary signature from Obama? And if passed, will this mark the beginning of the marijuana policy paradigm shift that a majority of American voters are hoping for? (Polls have shown more than 51 percent voter support for across the board legalization and there is 81 percent support for medical cannabis.)
The bipartisan amendment was co-authored by Representatives Dana Rohrabacher (R-Calif.) and Sam Farr (D-Calif.). In the House, 170 Democrats and 49 Republicans voted in favor of the amendment; 172 Republicans and 17 Democrats voted against it. (A complete breakdown of votes is available here.)
Do these numbers foreshadow an overall trend for Congressional Democrats in support of medical marijuana? Until the Senate submits its own marked-up version of the DOJ funding bill next week, it may be too soon to surmise whether there is enough support to sign off on the historic amendment. But, marijuana proponents are optimistic.
In the last couple of years, the overall Congressional consensus on pot has been shifting as two U.S. states have legalized marijuana and regulated it like alcohol, and dozens of others consider and implement policy changes. People on both sides of the political coin are warming to the idea of changing national marijuana laws.
In a strange-bedfellow effort to gain the support of Libertarian-leaning members of Congress, Ethan Nadelmann, director of the Drug Policy Alliance, worked with America for Tax Reform’s Grover Norquist on an op-ed for the conservative Daily Caller. They wrote:
“[The Rohrabacher-Farr amendment] is the best way right now to stop the federal government from undermining both state laws and the will of a substantial majority of Americans.”
Bill Piper, director of national affairs for the Drug Policy Alliance said he is cautiously hopeful about the amendment passing the Senate.
“We will have a better indication [next week], but a number of senators have come out recently and said states should be able to set their own marijuana laws,” he said. He noted that those senators include John McCain, who represents a medical marijuana state. “The Senate is always unpredictable but we have reason to be optimistic,” he added.
Hints from DC?
When the District of Columbia decriminalized the possession of small amounts of pot, some indication came as to where various senators stand on the issue. Democratic Senator Heidi Heitkamp of North Dakota said she sees her role in the matter as narrow. To “reverse what a city would do,” she said, would cause constitutional problems and serious fiscal consequences. She told CQ Roll Call she thinks, “the District is entitled to a whole lot of self-determination.”
Democratic Senator Thomas Carper of Delaware has said his views on marijuana are “evolving,” and—also in reference to DC’s decriminalization—Democratic Senator Claire McCaskill of Montana said DC’s government had the right to rearrange marijuana laws.
Democrat Carl Levin of Michigan said flat out that he had no problem with decriminalization.
Even libertarian-leaning Kentucky Republican Rand Paul, who proposed amendments to a budget autonomy bill in 2012 that would intervene in state abortion and gun control laws—is more relaxed when it comes to drug policy. The 2016 presidential hopeful has introduced legislation to relax federal drug sentencing laws, and “indicated he believes penalties for pot are too harsh,” as CQ reports.
What about Obama?
Even if the amendment does pass the Senate, the president still needs to sign off on it. While he worked with the attorney general to call the DOJ dogs off of Colorado and Washington’s recreational legalization and told the New Yorker he realizes pot is safer than alcohol, Obama’s medical marijuana policy has been relatively heavy-handed.
Before he was elected, Obama said he would halt federal raids on marijuana growers in states where it was legal, and in 2009 the DOJ sent out a memo stating that it wouldn’t use law enforcement to target those in compliance with state government laws. But the raids have raged on despite the rhetoric.
Hundreds of growers, dispensary owners and others have been arrested and imprisoned under the Obama administration.
It is unclear, though, how much of this policy has to do with Obama himself or the fact that the U.S. Drug Enforcement Administration chief, Michele Leonhart, has an apparent vendetta against all things pot. She is a vocal critic of the DOJ’s 2013 decision not to interfere with the implementation of Colorado and Washington’s legalization laws and has infamously said the day a flag made of hemp flew over the Capitol was the worst day in her career.
If both the House and Senate approve the bill with the amendment, it is likely Obama would sign it.
Does the Amendment Actually Do Anything?
If the bill does pass every remaining hurdle, amendment intact, it may not actually be the big game changer some are anticipating. In response to a Huffington Post article that claimed the amendment would, “restrict the Drug Enforcement Administration from using funds to go after medical marijuana operations that are legal under state laws,” Jeremy Daw, Harvard Law School graduate and editor-in-chief of The Leaf Online, argues that the language of the amendment is too weak. He writes that, as is, the amendment is unlikely to actually prevent federal raids of medical marijuana facilities:
“[The] amendment, assuming the GOP’s summary is accurate, would only prohibit [the DOJ] from targeting ‘States’ in attempts to interfere with their ‘implementing their own State laws’ concerning medical marijuana. That’s a clear reference to the federal authority, presently unchecked by act of Congress, to enjoin state governments from even trying to regulate medical marijuana industries. No protections for patients or collectives are specified in the amendment summary, despite HuffPost’s claims. Thus, while the Rohrabacher amendment is undeniably a win for medical cannabis advocates, its passage would merely codify a policy which the DOJ has already voluntarily agreed.”
In places like CA and Michigan where the laws aren’t specific, there are no new protections for patients or collectives in the amendment.
Additionally, the way it’s written the amendment only lists pre-existing medical marijuana states, name by name. So, if a state were to pass a medical marijuana law this year (New York, for example) they wouldn’t be protected by the amendment (see the amendment text below).
Sam Farr, who co-authored the amendment, said the House vote showed that Congress is ready to rethink the way America treats its medical marijuana patients.
“States with medical marijuana laws are no longer the outliers; they are the majority,” he said in a statement. “But while momentum is on our side, there is still work to be done to get this bill out of the Senate. In the meantime, the federal government can continue to prosecute medical marijuana patients. This is more than just a waste of taxpayer dollars; it needlessly destroys lives and tears families apart. The majority of states and now the House of Representatives have clearly stated this absurd policy needs to stop. I look forward to working with my colleagues in the Senate to pass this amendment and remove the burden weighing down on so many patients in our country.”
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