April 01, 2017 Features

The Uncertain Future of Marijuana Enforcement in the New Administration

By Courtney G. Saleski and Mark A. Kasten

The election of Donald Trump has cast a long shadow over what was otherwise a very successful election day for marijuana reform advocates. In a statewide referenda, residents of California, Massachusetts, Maine, and Nevada voted to legalize the recreational use and possession of marijuana, joining Alaska, Colorado, Oregon, Washington, and Washington, D.C., which had previously legalized the drug. With those victories, more than 20 percent of Americans live in states where recreational marijuana use is legal.1 In addition, voters in Arkansas, Florida, Montana, and North Dakota approved medical marijuana proposals, bringing the total number of states that permit or will permit the use of medical marijuana to 28.2

The steady liberalization of marijuana laws at the state level has continued despite the drug’s ongoing federal prohibition. It remains illegal under the federal Controlled Substances Act (CSA) to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana,3 which law the Supreme Court has held can constitutionally criminalize entirely intrastate conduct.4 Additionally, federal law criminalizes aiding and abetting the same conduct, and there are a host of companion federal crimes to federal drug crimes that can be prosecuted without a conviction for the underlying CSA violation, including conspiracy and money laundering.

A Fragile Truce: The Cole Memo and the Rohrabacher-Farr Amendment

As the number of states that legalized marijuana use or distribution in some form continued to grow, the federal government, during the Obama administration, appeared to relax its enforcement policy. An enforcement directive from the Department of Justice (DOJ) and a provision in Congress’s last two appropriations acts has given marijuana entrepreneurs and service providers some comfort that, absent a change in policy, the federal government will permit well-regulated state enterprises to operate unfettered. However, neither the enforcement policy nor the appropriations measure legalizes or immunizes conduct that is otherwise prohibited.

First, two memoranda from Deputy Attorney General James M. Cole provide guidance to U.S. attorneys regarding marijuana enforcement and suggest a narrow approach to prosecution of marijuana-related crimes, but reiterate that the illegal distribution and sale of marijuana is a serious crime and that the policy guidance does not alter in any way the DOJ’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law. The policy also states that neither the DOJ’s guidance nor state law provides a legal defense to a violation of federal law, including any violation of the CSA. The first memorandum, from August 29, 2013 (Cole Memo), provides guidance to U.S. attorneys by setting forth the priorities of the DOJ concerning enforcement of marijuana laws under the CSA.5 Those priorities include preventing (1) the distribution of marijuana to minors; (2) the diversion of marijuana from states where it is legal to states where it is not; (3) violence and firearm use in the cultivation or distribution of marijuana; (4) the exacerbation of public health consequences associated with marijuana use; (5) the growing of marijuana on public lands; and (6) marijuana use or possession on federal property. The Cole Memo directs U.S. attorneys to “focus their enforcement resources and efforts, including prosecution, on persons or organizations whose conduct interferes with any one or more of these priorities, regardless of state law.”6 Indeed, the memo states that, outside of those enumerated priorities, the DOJ has traditionally left enforcement of marijuana-related crimes to state and local authorities, and that states that have legalized marijuana in some form “must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities.”7 A February 14, 2014, memorandum also authored by Deputy Attorney General Cole provides similar guidance to U.S. attorneys with respect to certain financial crimes, such as money laundering and violations of the unlicensed money remitter statute or Bank Secrecy Act, for which marijuana-related conduct can form the basis for prosecution.8 This subsequent memo directs U.S. attorneys to apply the same priorities outlined in the August 29 guidance to the prosecution of financial crimes based on marijuana-related activity.

Second, federal prosecution of crimes relating to medical marijuana has also been partially restrained through funding measures since December 2014 by section 538 of the Consolidated Appropriations Act of 2015, otherwise known as the Rohrabacher-Farr Amendment.9 The measure stated that “[n]one of the funds made available in this Act to the Department of Justice may be used, with respect to [32 states and the District of Columbia], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”10 In December 2015, Congress extended this provision, including it as section 542 of the Consolidated Appropriations Act of 2016, which offers identical protection with respect to 40 states, the District of Columbia, Guam, and Puerto Rico.11 A continuing resolution, extending the 2016 appropriations measure through April 28, 2017, was signed by President Obama on December 10, 2016.12

The language, appearing to be directed at enforcement actions against states, resulted in uncertainty regarding whether it prevented prosecutions of individuals. Initially, the DOJ narrowly construed these funding restrictions, and in a February 27, 2015, memorandum (leaked in August 2015), Patty Merkamp Stemler, chief of the Appellate Section of the DOJ Criminal Division, wrote that “Section 538 does not bar the use of funds to enforce the CSA’s criminal prohibitions or to take civil enforcement and forfeiture actions against private individuals or entities consistent with the Department’s guidance regarding marijuana enforcement.”13 Rather, the memo stated that in the DOJ’s view, “the text of Section 538 is best read to prohibit the expenditure of the Department’s 2015 appropriations on civil litigation regarding State laws authorizing the medical use of marijuana where the State or State officials are a party, or where the status of a State law is challenged, or where the claim is that a State law or regulatory regime is preempted by the CSA.”14 In other words, the DOJ interpreted the spending restriction to only prohibit it from attacking states directly in an effort to prevent implementation of medical marijuana laws.

Congressmen Dana Rohrabacher and Sam Farr, the original sponsors of the appropriations measure, described the DOJ’s interpretation as “emphatically wrong,” and stated that “the purpose of our amendment was to prevent the Department from wasting its limited law enforcement resources on prosecutions and asset forfeiture actions against medical marijuana patients and providers, including businesses that operate legally under state law.”15 Moreover, the DOJ’s narrow interpretation of Congress’s spending provision was rejected by the Ninth Circuit Court of Appeals. In United States v. McIntosh, the court considered 10 consolidated interlocutory appeals and petitions for mandamus arising from district court orders entered in the Northern District of California, the Eastern District of California, and the Eastern District of Washington.16 The defendants in each case had filed motions to dismiss criminal proceedings or to enjoin the enforcement of federal law against them arising from alleged manufacturing, possessing, or possessing with intent to distribute marijuana.17 The district courts denied these motions, and the Ninth Circuit exercised jurisdiction over the interlocutory appeals as reviews of orders refusing an injunction pursuant to 28 U.S.C. section 1292(a).18

The appellants framed their argument as a separation of powers issue, complaining that the DOJ, as a result of section 542 of the Consolidated Appropriations Act of 2016 (the successor to section 538 of the 2015 Act), was spending funds that had not been appropriated by Congress in violation of the Appropriations Clause of the U.S. Constitution.19 The DOJ argued, consistent with the position in the Merkamp Stemler memo, that “it does not prevent the Medical Marijuana States from giving practical effect to their medical marijuana laws by prosecuting private individuals, rather than taking legal action against the state.”20 The Ninth Circuit rejected this reasoning, holding:

If the federal government prosecutes [individuals who engage in conduct permitted by the state], 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 are engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.21

In rejecting the DOJ’s limited interpretation of section 542, the Ninth Circuit gave force and effect to the intention of the drafters of sections 538 and 542, and gave medical marijuana entrepreneurs in the circuit temporary protection from federal prosecution.

The temporary nature of this protection presents real danger, however, particularly in light of the fact that crimes may potentially be prosecuted after the funding measures expire. The Ninth Circuit noted that the government retains authority to prosecute violations of the CSA and associated crimes related to medical marijuana, but that it did not have the funds to do so at the time.22 The court also noted that “Congress could appropriate funds for such prosecutions tomorrow.”23 The court explicitly stated that this observation should “serve as a warning,” noting that section 542 does not provide immunity from prosecution for federal marijuana offenses, and that the government can prosecute such offenses for up to five years after they occur.24 Accordingly, if and when the relevant funding is restored, the government could prosecute individuals or entities who violated federal marijuana laws while the funding was unavailable.25

An Uncertain Future: The Trump Administration

Regardless of the apparent fragile victories won by marijuana reform advocates during the Obama administration, they may be short-lived during the new administration. The most prescient of the Ninth Circuit’s warnings in McIntosh may turn out to be its statement that “a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”26 Attorney General Jeff Sessions and other individuals who are likely to shape criminal justice policy in a Trump administration, including Vice President Mike Pence, may not continue the relatively “hands-off” approach that the Obama administration followed.

Sessions has explicitly described his distaste for marijuana reform efforts and his disagreement with the policies of the Obama administration. At a Senate hearing in April 2016, Sessions said that “we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger.”27 He noted that leaders should impart “knowledge that this drug is dangerous, you cannot play with it, it is not funny, it’s not something to laugh about . . . and to send that message with clarity that good people don’t smoke marijuana.”28 Pence, similarly, is no friend to marijuana reform, having stated in response to a 2013 bill to ease Indiana’s marijuana laws, “I think we need to focus on reducing crime, not reducing penalties. . . . I think this legislation, as it moves forward, should still seek to continue to send a very strong message to the people of Indiana and particularly to those who would come into our state to deal drugs, that we are tough and we’re going to stay tough on narcotics in this state.”29

The fragile truce between the federal government and the marijuana industry as a result of the Cole Memo and the Rohrabacher-Farr Amendment could be quickly obliterated as the new administration begins. The White House seemed to confirm these fears recently, when White House press secretary Sean Spicer stated that he expects states will be subject to “greater enforcement” of federal marijuana laws, and noted that President Trump sees “a big difference” between medical and recreational use of marijuana.30

Even if it is left in place, the Trump administration could demand more stringent compliance with the Cole Memo. A December 2015 report by the Government Accountability Office criticized the DOJ for failing to sufficiently document the process of monitoring the effects of state marijuana legalization relative to the guidance set forth in the Cole Memo.31 Such criticism could prompt the new attorney general to more carefully examine whether state marijuana markets are sufficiently regulated consistent with the federal priorities set forth in the guidance. Indeed, Sessions signaled recently that a shift in the government’s enforcement priorities was on the horizon, telling reporters, “I’m definitely not a fan of expanded use of marijuana. . . . States they can pass the laws they choose. I would just say it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not.”32 Sessions also specifically confirmed the Cole Memo is under review. “Most states have some limits on it and, already, people are violating those limits,” he said.33 “We’re going to look at it . . . and try to adopt responsible policies.”34

While the Rohrabacher-Farr Amendment itself cannot be as quickly rescinded as the Cole Memo, this spending restriction lapses when the relevant appropriations measure expires. The continuing resolution that extends the Consolidated Appropriations Act of 2016 will remain in place only until April 28, 2017, and there is no guarantee that the spending restriction will survive the next congressional budget process, given that the new administration is likely to take a firmer stance with respect to marijuana enforcement. Moreover, House Speaker Paul Ryan has instituted new rules that make it more difficult for amendments like the Rohrabacher-Farr Amendment to be added to appropriations measures.35 Under the new rules, all amendments to appropriations bills must be approved by the House Rules Committee before the amendment reaches the floor.

While the days of the Cole Memo and the spending restriction may be numbered, what President Trump actually intends to do remains a mystery. Reform advocates may hold out hope that the Republican Party’s commitment to states’ rights will prevent the new administration from stepping up enforcement in states where recreational or medical marijuana is legal and well regulated. Indeed, either side can find some measure of hope in Trump’s own comments on this issue. When asked about Colorado’s recreational marijuana law at the conservative CPAC gathering in February 2015, Trump answered, “I say it’s bad.”36 He continued, “Medical marijuana is another thing, but I think [recreational marijuana is] bad. And I feel strongly about that.”37 When Sean Hannity, the session’s moderator, noted that legalization could be viewed as a states’ rights issue, Trump responded, “If they vote for it, they vote for it. But they’ve got a lot of problems going on right now in Colorado. Some big problems. But I think medical marijuana, 100 percent.”38

Conclusion

As the new administration takes power, marijuana reform advocates are facing the prospect of losing the protection (limited as it was) of both the Cole Memo and the Rohrabacher-Farr Amendment. As power in Washington, D.C., changes hands, one constant is the enforceability of the CSA, which remains the law of the land and makes it illegal to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana. Despite the apparent hostility of the incoming members of the administration to marijuana reform efforts, marijuana reformers searching for a bright spot need look no further than Trump’s own statements, which seem to leave the door open to allowing states the freedom to regulate their own marijuana markets. Given the flexibility of DOJ policy and the impending expiration of the Rohrabacher-Farr Amendment, the incoming regime has the tools to shape marijuana enforcement policy as it sees fit. Only time will tell how President Trump intends to use them. ◆

Endnotes

1. Thomas Fuller, Californians Legalize Marijuana in Vote That Could Echo Nationally, N.Y. Times, Nov. 9, 2016, http://www.nytimes.com/2016/11/09/us/politics/marijuana-legalization.html.

2. Barry Meier, Where Marijuana Is the Doctor’s Orders, Will Insurers Pay?, N.Y. Times, Nov. 2, 2016, http://www.nytimes.com/2016/11/22/business/where-marijuana-is-the-doctors-orders-will-insurers-pay.html.

3. 12 U.S.C. § 841.

4. Gonzales v. Raich, 545 U.S. 1 (2005).

5. Memorandum from James M. Cole, Deputy Attorney Gen., to All U.S. Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), available at https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.

6. Id. at 2.

7. Id. at 2–3.

8. Memorandum from James M. Cole, Deputy Attorney Gen., to All U.S. Attorneys, Guidance Regarding Marijuana Related Financial Crimes (Feb. 14, 2014), available at http://www.dfi.wa.gov/documents/banks/dept-of-justice-memo.pdf.

9. Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014).

10. Id.

11. Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332–33 (2015).

12. Further Continuing and Security Assistance Appropriations Act, 2017, Pub. L. No. 114-254, § 101, 130 Stat. 1005, 1005–06 (2016).

13. Memorandum from Patty Merkamp Stemler, Chief, Appellate Section, DOJ Criminal Div., to All Federal Prosecutors, Guidance Regarding the Effect of Section 538 of the Consolidated and Further Continuing Appropriations Act of 2015 on the Prosecution and Civil Enforcement and Forfeiture Actions under the Controlled Substances Act 2 (Feb. 27, 2015), available at http://www.marijuana.com/blog/news/2015/08/exclusive-justice-department-admits-misleading-congress-on-marijuana-vote/.

14. Id. at 6.

15. Letter from Dana Rohrabacher & Sam Farr, U.S. House of Representatives, to Hon. Eric Holder, U.S. Attorney Gen. (Apr. 8, 2015), available at http://www.safeaccessnow.org/reps_rohrabacher_farr_doj_letter.

16. 833 F.3d 1163, 1168 (9th Cir. 2016).

17. Id. at 1169–70.

18. Id. at 1172.

19. Id. at 1174 (citing U.S. Const. art. I, § 9, cl. 7).

20. Id. at 1176.

21. Id. at 1176–77.

22. Id. at 1179.

23. Id.

24. Id. at 1179 n.5.

25. Id.

26. Id.

27. Christopher Ingraham, Trump’s Pick for Attorney General: “Good People Don’t Smoke Marijuana, Wash. Post, Nov. 18, 2016, https://www.washingtonpost.com/ news/wonk/wp/2016/11/18/trumps-pick- for-attorney-general-good-people-dont-smoke-marijuana/.

28. Id.

29. Emily Longnecker, Pence Questions Proposal to Decrease Marijuana Penalties, WTHR Ind. (Mar. 20, 2013), http://www.wthr.com/article/pence-questions-proposal-to-decrease-marijuana-penalties.

30. John Wagner & Matt Zapotosky, Spicer: Feds Could Step Up Enforcement against Marijuana Use in States, Wash. Post, Feb. 23, 2016, https://www.washingtonpost.com/news/post-politics/wp/2017/02/23/spicer-feds-could-step-up-anti-pot-enforcement-in-states-where-recreational-marijuana-is-legal/.

31. U.S. Gov’t Accountability Office, GAO-16-1, State Marijuana Legalization: DOJ Should Document Its Approach to Monitoring the Effects of Legalization 31 (2015).

32. Josh Gerstein, Sessions Pushes Tougher Line on Marijuana, Politico (Feb. 27, 2017), http://www.politico.com/blogs/under-the-radar/2017/02/jeff-sessions-marijuana-235461.

33. Id.

34. Id.

35. Sarah Ferris, Ryan Changes Rules for Spending Bills, Hill (June 8, 2016), http://thehill.com/policy/finance/282704-ryan-changes-rules-for-spending-bills.

36. James Higdon, Jeff Sessions’ Coming War on Legal Marijuana, Politico (Dec. 5, 2016), http://www.politico.com/magazine/story/2016/12/jeff-sessions-coming-war-on-legal-marijuana-214501.

37. Id. (alteration in original).

38. Id.

Courtney G. Saleski and Mark A. Kasten

Courtney G. Saleski (courtney.saleski@dlapiper.com) is a partner and Mark A. Kasten (mark.kasten@dlapiper.com) is an associate in the Philadelphia office of DLA Piper LLP (US).