Congress Votes to Bar Federal Government Intervention Into State Cannabis Legislation

November 11, 2019 by Dennis R. Baranowski, Esq.

In June 2019 the House of Representatives signed off on a broad measure preventing Department of Justice interference with state cannabis legislation, including laws permitting recreational usage, growth and sales.

This amendment, which also protects marijuana laws in the District of Columbia and U.S. territories, has been incorporated into a multi-provision appropriations bill to provide funding for departments of the federal government in the upcoming fiscal year.

The incorporation of adult marijuana use initiatives signifies a considerable expansion of a preexisting policy that safeguarded solely local medical marijuana legislation from federal encroachment. This policy was first implemented in 2014 and has subsequently been extended annually via spending bills.

The broadened measure passed a floor vote of 267 to 165, a count that universal legalization advocates consider to be an indication of the growing congressional support for more all-inclusive and lasting alterations to existing federal cannabis regulations. The bi-partisan measure was sponsored by Representatives Earl Blumenauer (D-OR), Eleanor Holmes Norton (D-DC) and Tom McClintock (R-CA), and would prohibit the Department of Justice from expending resources to bar states and territories from enacting their own legislation authorizing the use, distribution, possession, or growth of cannabis.

In 2015, a similar bill was narrowly turned down by nine flipped votes on the House floor. Since that time, the amount of states that have passed comprehensive legalization measures has grown exponentially, resulting in a congressional environment where a significantly increased number of lawmakers currently represent constituents who will ultimately profit from the proposed expansions.

Also passed by the House in June 2019 was a comparable amendment offering protection to the marijuana regulations of Native American tribes, with not a single lawmaker requesting a roll call vote. Accordingly, this provision is also now incorporated into the fiscal year 2020 spending bill.

Representative McClintock circulated a letter to his fellow members prior to the vote being taken, arguing that the central issue to be considered was whether the federal government was overstepping its constitutional bounds in attempting to control state policy measures on an activity that takes place strictly within the states’ borders. McClintock stated he believed that the federal government did not possess such authority, and that states should have the power to determine their own individual criminal justice regulations.

The impending future of the marijuana bill in the Senate is currently speculative. Traditionally, the Senate’s Appropriations Committee has been to some extent open to the attachment of cannabis riders to spending legislation, and has repeatedly signed off on other medical marijuana safeguards. However, the Committee’s Republican base may be hesitant to implement a more sweeping addition of barring DOJ intervention in relation to the enforcement of federal laws against licensed corporations and consumers in states that permit recreational cannabis use. Democratic leaders in the House of Representatives requested their conference to back the measure in a whip email prior to the vote, and only eight party members chose to vote against the legislation.

The recent passage of the state safeguard amendment comes in spite of the fact that congressional offices received a late email message announcing Greenwich Biosciences, the producer of the Food and Drug Administration approved CBD-based drug Epidiolex, desired Congress to turn the measure down.

The message directed to congressional staffers argued that the protections were unnecessarily broad and may be construed as compromising the DOJ’s ability to help the FDA in enforcing actions that may be required to provide for public safety. The House had already passed an amendment earlier the same week directing the FDA to set up a protocol for regulating CBD-based food and dietary supplements. A further measure sponsored by Representative Alexandria Ocasio-Cortez (D-NY) was also passed that will divert $5 million from the Drug Enforcement Administration and be repurposed as funding for an opioid treatment initiative. Another Ocasio-Cortez amendment intended to facilitate increased research on psychedelic treatment options suing psilocybin and MDMA was overwhelmingly denied by the House earlier in June 2019.

The House is scheduled to vote on another measure pertaining to the spending bill that would enable military veterans to acquire medical cannabis treatment plans from Department of Veterans Affairs physicians. A separate piece of spending legislation passing through the House currently contains provisions protecting financial institutions from being prosecuted for collaborating with state-legalized marijuana companies, and strips a longstanding rider that has preempted the District of Columbia from using its own local tax funds from legalizing and regulating the cannabis industry.

Independent marijuana laws are developing at the same time. A comprehensive cannabis banking law was successfully vetted by the Financial Services Committee in March 2019 and will be voted on in the House. The Veterans’ Affairs Committee conducted a hearing on four laws relating to marijuana and military veterans in late June. And the Small Business Committee recently held a hearing on topics relevant to marijuana businesses, with the panel’s chairwoman stating that she would be filing a formal piece of legislation in the near future.

If you have any questions regarding cannabis legislation or the nuances of cannabis in private lending, contact Geraci Law Firm here.