Medical marijuana patients and entrepreneurs are caught in the latest political tug-of-war between President Donald Trump and Congress. Congress says that President Trump can't crack down on state-legalized medical marijuana programs, but the President says he can do just that if he wants to.
The disagreement centers on the latest federal budget, which contains a rider preventing the Department of Justice and DEA from spending any money on enforcing federal cannabis prohibition in states that have legalized medicinal use. Even though 30 states have approved medical marijuana, and another 15 have legalized the non-psychoactive cannabis extract CBD, the federal government still bans all forms and uses of marijuana.
So the only thing protecting those states from prosecution is the budget rider known as the Rohrabacher-Farr Amendment, which has to be renewed with each spending bill.
Trump keeps door open to crackdown
Members of America's medical marijuana industry thought they could breathe a sigh of relief last week when President Trump signed that rider into law along with the rest of the latest spending bill. That should have protected them until at least September 2017, when the new budget has to be passed. But earlier this week, Trump released a signing statement that said he was keeping the door open to a medical marijuana crackdown.
“I will treat this provision [the R-F Amendment] consistently with my constitutional responsibility to take care that the laws be faithfully executed,” Trump wrote. That statement has left members of the industry wondering if this is political bluster or the first shot in a new era for America's War on Drugs. And can Trump actually override Congress on this issue?
First off, it's important to keep this statement in perspective, says Paul Armentano, Deputy Director of NORML. "Presidential signing statements are not altogether uncommon and they do not carry the weight of law," he told Civilzied via email.
So writing something in a signing statement doesn't make it law. Trump could've written that Congresspeople shouldn't wear pants, but that doesn't mean anyone caught in khakis on Capitol Hill would be thrown in jail.
But the meaning of this signing statement is messier than a soup sandwich. Basically, Trump is both right and wrong about his executive power, according to Armentano.
"The President is correct in his interpretation that federal law supersedes state laws. But nothing in this amendment challenges this notion. Rather, the amendment limits the spending of federal tax dollars to enforce federal law in these specific areas."
So regardless of what the budget says, Trump maintains the authority to enforce federal law - including cannabis prohibition. Congress can't get in the way of that, nor are they trying to with the budget rider. The Rohrabacher-Farr Amendment doesn't impede presidential power, but it does flex legislative might over the government's bank account, which falls under Congressional authority.
"It is well established in the United States that Congress holds the ‘power of the purse’ and that it can set funding priorities," Armentano added. "Further, the U.S. Ninth Circuit Court of Appeals has previously upheld the constitutionality of the Rohrabacher spending provision."
So Trump probably won't win if he takes the issue to court.
That means Trump can renew the War on Drugs if he wants - he just can't spend any money on it without Congress' say-so. Prohibition remains law, but its impact on medical marijuana is moot so long as the rider is in effect. It's like having a souped-up sports car with no gas to drive it.
Of course Trump could press the issue if he really wanted to challenge Congress' authority over government spending. So if lawmakers want to avoid a showdown over medicinal cannabis, they should take Armentano's advice and pass a law instead of relying on a flimsy rider to protect the industry.
"Ultimately, however, it is the responsibility of Congress to amend federal marijuana laws in a manner that comports with available science, majority public opinion, and the rapidly changing legal and cultural landscape," Armentano wrote. "This change must take place by passing legislation to amend the federal Controlled Substances Act rather than by the passage of temporary budgetary riders."
And there are plenty of bills in the House of Representatives as well as the Senate that would do just that, if Congress would only get around to giving them a hearing.