More Than Compassionate Use Is On The Horizon

California has turned a corner when it comes to marijuana. In 1996, California voters voted in favor of Proposition 215, the Medical Marijuana Initiative. The initiative became the Compassionate Use Act of 1996. Then, in October 2015, Governor Brown signed the Medical Marijuana Regulation and Safety Act. That Act put in place the regulatory infrastructure necessary to license medical marijuana producers and dispensaries. That infrastructure includes the Bureau of Medical Marijuana Regulation under the Department of Consumer Affairs. Most recently, California announced that a new proposition will be on the ballot to legalize the recreational use of marijuana. If approved by the voters, California will join Alaska, Colorado, Oregon and Washington in legalizing marijuana beyond medicinal uses.

Yet, marijuana remains illegal under the federal Controlled Substances Act (21 U.S.C. § 812). Under the Supremacy Clause of the U.S. Constitution (Art. VI, clause 2), where a federal law is in conflict with a state law, federal law prevails. The Controlled Substances Act does not have an exception for medical marijuana, much less for recreational marijuana. California’s medical marijuana laws appear to be in conflict with the Controlled Substances Act and under the Supremacy Clause, the criminal penalties under the Controlled Substances Act should prevail.

So what’s going on?

A Policy of Prosecutorial Discretion Bridges Federal and State Laws

The answer is two-fold: First, the Department of Justice has exercised its discretion not to prosecute federal marijuana crimes in states that comply with specific guidelines, and second, Congress quietly defunded the Department of Justice’s ability to prosecute medical marijuana cases in the states that have legalized medical marijuana.

In August 2013, the Department of Justice issued a memorandum to all U.S. Attorneys in the United States, authored by Deputy Attorney General James M. Cole. In federal criminal practice, U.S. Attorneys serve as prosecutors of person who violate the federal criminal laws. Deputy A.G. Cole listed the priorities of the Department of Justice in prosecuting marijuana cases. Those priorities included such things as:

  • Preventing the distribution of marijuana to minors;
  • Preventing the revenue from sales of marijuana from going to criminal organizations;
  • Preventing the trafficking of marijuana from states where it is legal to states where it is illegal; and
  • Preventing drugged driving and similar acts that would affect public safety.

When a state legalizes marijuana under a regulatory scheme that addresses the Department of Justice’s priorities, the memorandum instructed the U.S. Attorneys not to proceed against marijuana production, sale or use in that state, either criminally or civilly.

Then, in 2014, Congress added section 538 to the Consolidated and Further Continuing Appropriations Act of 2015. Section 538 stated:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of … California , to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

In effect, Congress legalized medical marijuana in those states that enacted medical marijuana legislation by defunding the Department of Justice’s ability to move against medical marijuana in those states.

Section 538 was put to the test in federal court in California in the case of United States v. Marin Alliance for Medical Marijuana, N.D. Cal. Case No. C98-00086 CRB. The Marin Alliance for Medical Marijuana (“MAMM”) is a medical marijuana dispensary based in Marin County. The Department of Justice moved to enjoin it from operating, and the district court, recognizing the preeminence of the Supremacy Clause, granted the injunction. After Congress passed section 538, MAMM moved to dissolve the injunction, and the Department of Justice opposed that effort. The district court granted MAMM’s motion and dissolved the injunction. In so ruling, the court focused on the policy choice that Congress had made: “The Court’s only task is to interpret and apply Congress’ policy choices, as articulated in legislation. And in this instance, Congress dictated in Section 538 that it intended to prohibit the Department of Justice from expending funds in connection with the enforcement of any law that interferes with California’s ability to .” As for the Department of Justice’s arguments in opposition, the district court was withering: “The Government’s contrary reading so tortures the plain meaning of the statute that it must be quoted to ensure credible articulation.”

Notwithstanding the district court’s remarks, the Department of Justice has appealed the decision to the Ninth Circuit.


The Cole memorandum and section 538 are half-measures. If federal law were to permit states to enact laws legalizing marijuana, then the direct approach would be for Congress to enact an amendment to the Controlled Substances Act that would do exactly that. Instead, the Department of Justice and Congress have used methods that de-prioritize the federal response to state laws that regulate the production, sale and use of marijuana so as to give the states the leeway to legalize marijuana. The problem with half-measures is that they can be counter­manded. The Department of Justice’s opposition in the MAMM case illustrates this. Given the “plain meaning” of section 538, one wonders what the Department of Justice might be up to.

Still, the momentum toward legalizing marijuana is growing, especially in California. With the establishment of a bureaucracy dedicated to marijuana, there is not likely to be any turning back to the days before Proposition 215.

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Thomas E. Moore III

Thomas E. Moore III has practiced law in Palo Alto continuously since 1984, representing individuals and start-up to mid-size technology companies in intellectual property and commercial litigation matters. His approach is multi-disciplinary and is focused at gaining results in as efficient a manner as possible.
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