Through its commercial cannabis licensing system, the State of California stands diametrically opposed to the federal government, which criminalizes all production and sales of marijuana in the Controlled Substances Act. Under the Supremacy Clause of the US Constitution, federal law is the “supreme Law of the Land,” and thus takes priority over any conflicting state law. Accordingly, ever since California first legalized medical marijuana in 1996, it has had to watch out for the Drug Enforcement Administration and federal prosecutors, who have always been looming in the background, ready to possibly criminally prosecute, imprison, and seize the assets of anyone involved in the cannabis industry.
Fortunately, in December 2014, the federal Rohrbacher-Farr amendment was enacted into federal law, as part of an omnibus spending bill (Dana Rohrbacher was formerly a Congressman in Orange County, CA). The new law did not end the federal criminalization of marijuana, but did prohibit the federal Department of Justice from using any funds “to prevent … States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” This law preventing the DOJ’s interference with state medical marijuana programs was renewed a number of times, and then, this week, on July 30, 2020, the House of Representatives passed an important expansion of the law. The amendment was sponsored by two of California’s own Representatives, Barbara Lee (D-CA) and Tom McClintock (R-CA), and also Reps. Earl Blumenauer (D-OR) and Eleanor Holmes Norton (D-DC). This measure has the objective to completely stop the DOJ from using its funds to disrupt and obstruct the enactment of cannabis legalization laws – for both medical and non-medical marijuana. This would give the entire adult-use cannabis industry assurance that its workers will not be arrested and charged with crimes, and that its assets will not be seized by the DOJ through federal asset forfeiture. The provision should be voted on by the Senate in the upcoming days.
The Rohrbacher-Farr amendment protects individuals who comply with state cannabis law against federal criminal prosecution by the Department of Justice, and can be raised as a defense in any such criminal case. It also protects against asset forfeiture by the Department of Justice for any funds derived from activity that complies with state cannabis law. It does not, however, protect against federal forfeiture of funds derived from state-legal cannabis activity by other federal agencies, including the Department of Homeland Security, Immigrations and Customs Enforcement, and the Department of the Treasury, which commonly seize funds from people that are suspected to arise from cannabis sales.
There are plans in the works to hold a floor vote on a more sweeping standalone marijuana legalization bill in September. (https://www.marijuanamoment.net/house-to-vote-on-protecting-all-state-marijuana-programs-from-federal-interference-this-week/). This bill, known as the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, would completely remove cannabis from the federal Controlled Substances Act, leaving its regulation (or prohibition) to the discretion of the states. The bill would also fund programs aimed at repairing the harms of the war on drugs, similar to Los Angeles’s Social Equity Program.
To the dismay of many in the cannabis industry, the Democratic National Committee’s platform committee just overwhelmingly rejected an amendment calling on the Democratic Party to support marijuana legalization, with over two-thirds of the 156 Democratic delegates opposing the call for marijuana legalization (https://reason.com/2020/07/28/democrats-wimp-out-on-federal-marijuana-legalization-thanks-joe-biden/). The Democratic Party is greatly out of step with the American public on this issue, with over two-thirds of all Americans believing marijuana should be legalized (an exact inverse of the Democratic Party delegates).
Joe Biden’s campaign, moreover, has announced that instead of ending federal cannabis prohibition, he will seek to move marijuana from Schedule 1 of the federal Controlled Substances Act (allowing no use whatsoever) to Schedule 2 (the category for strictly-controlled pharmaceutical drugs like fentanyl and cocaine). (https://www.vice.com/en_us/article/43kg3m/joe-biden-is-coming-for-your-legal-recreational-weed.). Biden’s plan would destroy California’s state-regulated cannabis industry, and allow the marijuana to be produced and sold only as an FDA-approved drug by pharmaceutical companies, and provided only to people with doctor’s prescriptions to use it. Biden has supported harsh criminal justice tactics against non-violent drug offenders throughout his political career. If the MORE Act becomes law, completely removing marijuana from the federal Controlled Substances Act, Biden may seek to have the law overturned upon his election, given his steadfast position against federal legalization, and his years of speaking out against marijuana.
Not every Democrat holds Biden’s anti-marijuana views. While two-thirds of Democrats opposed making marijuana legalization part of the Democrats’ platform, Democratic Speaker of the House Nancy Pelosi recently defended the decision to include marijuana banking protections in the latest coronavirus relief bill, stating in defense of the bill that “I don’t agree that cannabis is not related to this. This is a therapy that has proven successful.” (https://www.marijuanamoment.net/nancy-pelosi-says-marijuana-is-a-therapy-that-has-proven-successful-amid-coronavirus-bill-debate/).
In another recent development, the State of California is trying to prevent a federal court from forcing California regulators, via a DEA subpoena, to hand over documents relating to several licensed marijuana businesses. According to Marijuana Moment, California’s state attorney general did not comply with the DEA’s request because “the federal agency failed to adequately explain the relevance to an investigation and because state privacy laws prevent them from sharing the documents.”
Here is what Attorney General Xavier Becerra had to say about the subpoena: “the Bureau informed the DEA that it objected to the subpoena for the following reasons: (1) the ‘subpoena does not specify the relevancy of the subpoena’ as it failed to include a statement describing how the subpoenaed records are in fact relevant to the DEA investigation, and (2) the subpoena sought information that was part of a pending licensing application investigation and was confidential, protected as a trade secret, or was otherwise protected by California privacy laws.” It is unclear why the feds are seeking the business records, but their actions could be seen as violating the Rohrbacher-Farr amendment and its prohibition on interfering with state-licensed cannabis activity.
As California’s state officials continue to fight back against an overbearing federal government, Margolin and Lawrence also continues to help our local officials by lobbying and advocating for cannabis policy reform. Several months into the coronavirus pandemic, with many businesses shut down and jobs lost, local governments are looking for ways to boost tax revenues and employment. Some cities are showing a new willingness to welcome commercial cannabis, and overturn existing bans, placing cannabis ordinances on the upcoming November 3 ballot. (https://www.ocregister.com/2020/07/31/pandemic-economics-pushing-so-cal-cities-to-consider-cannabis/). Ending the federal war on marijuana would surely give more local governments comfort in opening cannabis businesses. The harm caused by the war on drugs has plagued our nation with unnecessary crime, violence, and racism. We can only hope that the federal government eventually agrees to eliminate these destructive laws.