Marijuana policy: now more even more misleading!

by Aaron Blaschke Rowden, 2L
Law Weekly
April 1, 2009

As many people are likely aware, Attorney General Eric Holder recently announced a new Obama administration policy regarding the use of federal resources to conduct operations against dispensaries involved in providing medical marijuana. Under the new rules, the federal government will only raid dispensaries that are determined to be operating in violation of both state and federal law.

To be clear on how this matter arises, keep in mind that marijuana is a regulated substance under both state and federal laws and is currently under a federal prohibition. Fourteen states, most notably California, but also Alaska, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington, have enacted medical marijuana legislation to legalize a limited amount of marijuana for sale to persons with valid prescriptions or certifications from physicians. These legislative maneuvers have created situations in which the state and local governments are licensing and supporting business that are illegal under federal law.

Under the Bush administration, when many of these laws became effective and marijauna clinics and dispensaries began opening their doors, the federal government took the position that a violation of federal law was sufficient to trigger enforcement regardless of the positions of the states, and medical marijuana providers could expect heavy-handed federal tactics.

In fact, in the case Gonzalez v. Raich, the Bush administration sought and received unprecedented power to prosecute individual medical marijuana users. People involved in the medical marijuana industry knew the risks under the Bush administration and could be prepared for them, as outrageous as the methods and targets of enforcement became.

Many pro-medical marijuana advocates saw hope for a more rational policy with the new administration's announcement. As stated, the new policy would effectively be one under which federal authorities were assisting states to give teeth to their own prohibitions, while leaving those states without prohibitions alone. Such a policy would likely have helped assauge some of the federalist tension that the marijuana issue has traditionally aroused. From many points of view, this could be seen as a step toward a common-sense policy to deal with a drug that is more easily acquired than pharmaceuticals for many in the United States.

The dream of a sensible policy seems to have been short-lived, however. Recent reports from California indicate that prosecutions based on raids made immediately after the new policy came into effect are still moving forward, on the grounds that dispensary operators have violated both state and federal law. How can a dispensary owner licensed by the State of California be found to violate California law? The law that the dispensary operator is violating is not a law regarding the sale of marijuana, but rather a sales tax provision.

There is no argument to be made here that a violation of any law by a business should be overlooked. If businesses fail to properly deal with their tax obligations under state law, the states can, and should, use available means to correct that situation. However, the federal government's use of such a lapse to justify raiding a business that would otherwise be left alone raises serious questions, not only about the way in which agencies are interpreting the current marijuana policy, but also whether the policy is actually better, from a pro-medical marijuana perspective, than the Bush-era policy of open and ruthless enforcement.

Federal agencies, like law students, know that the United States has more laws on the books than anyone can even count. This applies to most states, as well. It is very likely that businesses will, at times, inadvertantly break laws, be they tax provisions, safety codes, immigration measures, etc. Without employing a nexus test, the Obama administrations policy has, at a basic level, left every marijuana dispensary in the nation subject to the same types of raids that they were subject to the day before the announcement. However, the announcement will lead some dispensary owners who are following their state's laws regarding marijuana to believe they are safe from such actions and expose themselves to greater risk of prosecution.

If one is against medical marijuana, this is a fantastic outcome, as the federal government has effectively set up the king's archery tournament to catch these Robin Hoods of medicinal pot. However, if one believes that medical marijuana is useful, one may see this as a means of punishing those who would use the new policy to more effectively distribute medicine to people in need through a staffed and regulated clinic or dispensary, as opposed to more easily fooled vending-machine-style distribution, or even criminal drug pushers.

It is unclear how the current cases in California will play out and what they mean for the future of the medical marijuana industry. Perhaps the administration will clarify its goals and create the nexus test necessary to make sure that only those dispensaries violating state marijuana laws be targeted for enforcement.