The Rohrbacher earthquake

I’ve been wondering how long it would take the huge shift in public opinion about cannbis to penetrate Capitol Hill. The answer – somewhat to my surprise – turns out to be “Not that long.” Yesterday the House passed the Rohrbacher Amendment, protecting state “medical marijuana” laws against federal enforcement efforts:

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.

The lawyers will have to tell us what that means, assuming that the amendment makes it through the Senate. Surely it can’t immunize all pot-growing and pot-selling activity in those states. Would it immunize any such activity in compliance with  state law? Or simply forbid DoJ from attacking state regulatory processes – e.g., by seeking to enjoin license applicants from using their state licenses – which (AFAIK) DoJ hasn’t done?

But whatever the policy details, the political fact is astounding. Rohrbacher found 49 Republican votes to add to 170 Democrats, winning the rollcall by a decisive 219-189. (172 Republicans, including  Cantor and Ryan, and 17 Democrats, not including any of the Democratic leadership, voted against. The Speaker, as usual, didn’t vote.) As Jacob Sullum notes, this should have been an easy vote for Republicans who actually believe in states’ rights and limited government. What that says about the 77% of the Republican caucus that voted “No,” and about the libertarians who stay loyal to the Red team, is left as an exercise for the student.

The times, they are a-changin’.


Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

8 thoughts on “The Rohrbacher earthquake”

  1. the one thing i find a bit problematic about that amendment is that if a state not on that list were to pass a medical marijuana regime then the doj would still be able to attack that process. then again, it might not have been possible to find enough support for a more sweeping phrasing of the amndment.

  2. Something peculiar here, 219 usually means a squeaker margin — where are the votes of the other House members sent to Washington to represent their districts? This would be a good assignment for a DC reporter,talk to the two dozen plus people who didn't vote and find out off the record if they were afraid to vote yes, afraid to vote no, or, just…afraid.

  3. How many no votes came from states covered by the amendment? If they came from states which have not adopted medical cannabis laws, then Sullum's puzzle may not be such an enigma after all.

    This is as good a time as any to point out once more that states do not have rights, period. States have powers; the people have rights. The ninth and tenth amendments tell us so.

  4. I don't think being a lawyer (even an experienced criminal lawyer) is likely to provide any special insight into the meaning of this rather vaguely written law. It seems to have been written more to provide a hint to the DOJ that if they ease up on medical marijuana, this legislation and the fact that it was sponsored by a conservative might give some degree of insulation against being mau-maued by Republicans. At best,though, it would seem to discourage (but, for separation of powers reason, probably would not prevent) an all out frontal assault on the state level medical marijuana programs and the state officials charged with implementing them even as it leaves everybody vulnerable to things like federal tax, money laundering and RICO prosecutions.

    As I've said each time we've discussed medical marijuana or state level legalization here, the most likely flash points would involve the kinds of ancillary activities (banking, property rentals, transportation, security guard services) that don't directly involve the state regulatory schemes and which exclusively implicate federal laws targeting drug traffickers. The nature of our federalist system (and the supremacy clause) means that the states cannot license their citizens to violate federal tax laws, federal laws against money laundering, federal law against possession and distribution of controlled substances. Regardless of this statute or a future amendment to the USA's Manual, all of these activities will continue to be prosecutable at the discretion of individual USAs.

    I believe that asset forfeiture statutes would continue to allow USA's to seek forfeiture of properties rented to licensed medical MJ businesses, vehicles used to transport marijuana, and cars, houses and stuff bought with the proceeds of selling a controlled substance. I don't see how this bill prohibits such lawsuits or insulates property that is used in trafficking or is traceable to the proceeds of selling a controlled substance from forfeiture.

    Basically, "emerging social consensus" cheerleading aside, I don't know what this law means or would do. My guess is that it wouldn't change the status quo appreciably and it almost certainly wouldn't stop a local USA interested in making a culture war statement from targeting people involved in medical marijuana.

    1. It would definitely prohibit the DOJ from bringing prosecutions for conduct that is permitted under a named state's medical marijuana law.

      The thing is, if the DOJ violated the statute, I doubt a defendant would have standing to raise the issue. Congress would have to sue or impeach Holder.

  5. At least in California, it seems that half the problem is that the State can barely decide itself what the State laws are and what is legal under them. Of course, there's a lot of money to be made in stretching those laws to their outer limit.

    Still, quite a statement. Being represented by one of the California Republicans who opposed the amendment, I can say he'd say Prop 215 was a mistake and has created a foul mess, so why encourage it.

  6. My take is very similar to Mitch's. I think it would be very difficult to defend against a prosecution in court using this language. I believe the amendments much more about sending a signal to the DOJ than creating any legally enforceable rights. More of my thoughts on the amendment's language here:

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