By Eugene Volokh
A thriving marijuana plant is seen at a grow operation in Denver, Colorado December 31, 2013. (Reuters/Rick Wilking/File Photo)
This
is big. Starting in December 2014, Congress has provided 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” (§ 542 of the Consolidated Appropriations Act). Today, the
Ninth Circuit held (in
United States v. McIntosh)
that federal judges should enforce this law by stopping prosecutions
for conduct that is authorized by state medical marijuana laws:
Appellants
complain that DOJ is spending funds that have not been appropriated by
Congress in violation of the Appropriations Clause of the Constitution.
See U.S. Const.
art. I, § 9, cl. 7 (“No Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law ….”)…. [I]f
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….
Thus, in order to decide whether the
prosecutions of Appellants violate § 542, we must determine the plain
meaning of “prevent any of [the Medical Marijuana States] from
implementing their own laws that authorize the use, distribution,
possession, or cultivation of medical marijuana.” … “[I]mplement” means:
To “carry out, accomplish; esp.: to give practical effect to and ensure of actual fulfillment by concrete measure.” Implement, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003);
“To put into practical effect; carry out.” Implement, American Heritage Dictionary of the English Language (5th ed. 2011); and
“To complete, perform, carry into effect (a contract, agreement, etc.); to fulfil (an engagement or promise).” Implement, Oxford English Dictionary, www.oed.com.
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….
[But] DOJ
does not prevent the implementation of rules authorizing conduct when it
prosecutes individuals who engage in conduct unauthorized under state
medical marijuana laws. Individuals who do not strictly comply with all
state-law conditions regarding the use, distribution, possession, and
cultivation of medical marijuana have engaged in conduct that is
unauthorized, and prosecuting such individuals does not violate § 542….
We
therefore must remand to the district courts. If DOJ wishes to continue
these prosecutions, Appellants are entitled to evidentiary hearings to
determine whether their conduct was completely authorized by state law,
by which we mean that they strictly complied with all relevant
conditions imposed by state law on the use, distribution, possession,
and cultivation of medical marijuana. We leave to the district courts to
determine, in the first instance and in each case, the precise remedy
that would be appropriate.
We note the temporal nature of the
problem with these prosecutions. The government had authority to
initiate criminal proceedings, and it merely lost funds to continue
them. DOJ is currently prohibited from spending funds from specific
appropriations acts for prosecutions of those who complied with state
law. But Congress could appropriate funds for such prosecutions
tomorrow.
Conversely, this temporary lack of funds could become a
more permanent lack of funds if Congress continues to include the same
rider in future appropriations bills.
In determining the appropriate
remedy for any violation of § 542, the district courts should consider
the temporal nature of the lack of funds along with Appellants’ rights
to a speedy trial under the Sixth Amendment and the Speedy Trial Act.
[Footnote:
The prior observation should also serve as a warning. To be clear, §
542 does not provide immunity from prosecution for federal marijuana
offenses.
The CSAprohibits 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.
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.
Nor
does 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.]
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