In October of 2013, here’s where we were: just 2 states had approved the legalization of recreational marijuana, another 13 had already legalized medical marijuana, and the federal government was shut down because Congress could not get it together to pass a spending bill. When the bill did finally pass, there was an amendment attached protecting marijuana use from federal prosecution in 33 states and Washington, D.C.
This amendment was the Rohrabacher-Farr Amendment, named for the representatives from California who drew it up and have championed it ever since. The amendment, as it was passed in 2013, reads as follows:
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.
Though marijuana legalization was (and still is) gaining more and more traction at the state level, the fact remains that marijuana is still fully and totally illegal according to federal law. Before the implementation of the Rohrabacher-Farr Amendment, businesses and consumers operated in an uneasy legal grey area: people who were dutifully following newly-approved state laws regarding marijuana cultivation, distribution, and consumption were still at risk of federal investigation and prosecution by the Department of Justice.
The genius of the Rohrabacher-Farr Amendment is that it doesn’t bother with the ins and outs of federal law at all. Instead, it intervenes financially. As per the amendment, the Department of Justice is prohibited from using their resources to go after states with legalized medical marijuana. Sure, it’s a little convoluted, but it works: the Department of Justice can’t prosecute for violation of federal law if they can’t access the funds to do it. By limiting how the Department of Justice can spend their time and money, the amendment ensures that businesses and consumers following their states’ laws regarding medical marijuana can operate without fear of federal prosecution.
Just this past May, as Congress waded through approving the latest spending bill, an expanded version of the Rohrabacher-Farr Amendment (now technically known as the Rohrabacher-Blumenauer Amendment, now-retired Representative Farr having been replaced by Representative Earl Blumenauer of Oregon) was attached and passed again. This time it included the same protections for an additional 11 states, as well as the territories of Guam and Puerto Rico.
Great news, right? Well, kind of.
First of all, the amendment only covers medical marijuana. There isn’t currently any official, binding language at this level protecting recreational use or distribution from federal prosecution -- the closest thing we have to that is the Cole Memorandum, a set of guidelines on how to stay low on the Department of Justice’s list of prosecution priorities. It’s not nothing -- even Jeff Sessions seems to be more or less on board with it -- but it’s a far cry from a lasting, binding guarantee against federal prosecution.
Second, the legalese as to who is and is not protected is surprisingly open to interpretation. As the good lawyers of Thompson Coburn point out, the only entities explicitly guaranteed protections are the states themselves, not necessarily the people conducting business within those states. This is an incredibly nit-picky argument, but not outside the realm of reason -- and, as they go on to explain, one we won’t likely have a clear answer to until the amendment is more widely tested in court.
Third, the Rohrabacher-Farr amendment is just that — an amendment. The latest version is legal and binding only until the end of September, when it, the spending bill it’s attached to, and this fiscal year all expire. If it’s going to survive into the next fiscal year, it will need to be reproposed and reapproved, a long and unpredictable process that is anything but certain.
That said, the Rohrabacher-Farr Amendment still has a lot going for it: support for it is thoroughly bipartisan, the number of states and territories it protects has only increased over time, and Representative Rohrabacher himself shows no signs of slowing down. Coupled with the widespread support marijuana legalization cu
rrently enjoys, one of many reasons the current administration is likely to leave legalized marijuana alone, it’s unlikely that what protections it does offer will be summarily whisked away anytime soon. It’s not perfect, but it is a good start with many years of support behind it, and hopefully one that will lead to increased acceptance and expanded protections in the future.