Medical marijuana states wait in limbo as Congress passes one-week spending bill

The Rohrabacher-Farr Amendment (RFA), which was set to expire today (April 28th, 2017), lives on for at least another week. By passing a one-week temporary spending bill that effectively just changes the date of the previous spending resolution to May 5th, 2017, Congress also kept alive the RFA. However, states with medical marijuana laws now wait in limbo, hoping that Congress finds compromise and passes a spending bill that covers the rest of the fiscal year in September and includes RFA.

Originally passed in 2014 after at least six failed attempts, the RFA ties the hands of the Department of Justice (DOJ) by prohibiting DOJ from using federal funds to prevent the implementation of state laws. As long as Congress keeps renewing it, RFA is established law that has also withstood court challenges.

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

When the Congressional Cannabis Caucus held their kickoff press-conference a few months ago, they identified the renewal of RFA as one of their top priorities as they want to give states the freedom to pass and implement cannabis laws without being subject to the whims of any President or DOJ. Recently, Jared Polis expressed optimism that RFA will be included in any spending bill that is passed. But, lawmakers continue to be at odds about key components and spending priorities of the budget, thus extending the threat of a government shutdown for another week. In the event that Congress fails to pass a spending bill, RFA would expire and the DOJ could initiate enforcement actions against individuals or businesses operating in medical states.

Of course, it’s worth noting that RFA does not include recreational cannabis laws. Those states that have adopted recreational laws continue to be at risk unless a similar amendment or bill is introduced to protect the recreational industry. The Congressional Cannabis Caucus does not plan to add recreational use to the RFA language in this current spending debate because of the risk of losing votes in support of the original medical language.

The elephant in the room here is whether Jeff Sessions plans on enforcing federal law, where marijuana is listed as a “schedule 1” drug on the Controlled Substances Act (CSA). Throughout his career, and especially recently, Sessions has made it clear that he is not a fan of permissive marijuana laws and intends to enforce the current federal laws. RFA ties his hands in medical states, but recreational states are currently unprotected.

Assuming Congress gets its act together next week and passes a spending bill that includes RFA through the end of the fiscal year, medical states will be safe through September. The Congressional Cannabis Caucus will then look to introduce legislation to protect recreational states, a task that will be significantly tougher sledding than extending the renewal of RFA.

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