The Rohrabacher-Farr amendment: What You Need to Know

Jason Mueller

September 13th, 2017

Policy, Top News

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 Rohrabacher-Farr Amendment, December 2014

The Rohrabacher-Farr Amendment, first called the Hinchey-Rohrabacher Amendment, was introduced in 2003, and it set prohibitive limits on the Federal Justice Department’s budget concerning interference with States’ rights to medical programs they’ve developed.  Original sponsors of the bill included Maurice Hinchey, Dana Rohrabacher, and Sam Farr.  After six failed votes between its introduction, the amendment passed as The Rohrabacher-Farr Amendment in December ’14 as part of a spending bill.  Key aspects of the amendment include that it must be renewed annually, that it had a rocky implementation with interference by the Justice Department and finally, that it won a strong victory in 2015, tying the hands of AG Jeff Sessions and his Justice Department during the current Presidency.

Despite the protections that the Rohrabacher-Farr Amendment provide, one critical flaw is that the amendment must be renewed yearly.  Given mobilized forces in Congress like the Marijuana Caucus paired with a surging public favor for cannabis, ensuring that this deadline is met with strong congressional support looks favorable in the future.  Nonetheless, this loophole exists, and could jeopardize the amendment should prohibitionist interests in Congress find a way to delay its renewal at the end of the fiscal year.

As mentioned, The Rohrabacher-Farr Amendment was voted on six times before passing, and that was just the beginning of the challenge.  In April 2015, the Department of Justice announced their interpretation of the amendment and claimed that they still had the authority to prosecute individuals who were compliant with statewide legalization for medical or recreational purposes.  Both Farr and Rohrabacher criticized the interpretation, and in October 2015, US District Judge Charles Breyer ruled on side with the original intent of the amendment to provide protection to state-legal cannabis programs.  His remarks on the Justice Department’s actions were strong, calling them, “counterintuitive and opportunistic“.  Further solidifying the amendment’s place, in April 2016, the Justice Department withdrew their repeal of Judge Breyer’s decision. Later in 2016, the Ninth Circuit Court of Appeals rejected the DOJ interpretation in August.  This decision, made unanimously by a three-judge panel is binding and not likely to be challenged in any of the nine western states in the Ninth Circuit.

With these two major 2016 decisions standing in favor of the Rohrabacher-Farr Amendment’s influence over the Justice Department, Attorney General Jeff Sessions has no means to “crack down” on the cannabis industry even if that’s exactly what he wants.  Criminal investigations into state-legal dispensaries on a Federal level have led to raids in the past, and they will in the future as well: The Rohrabacher-Farr Amendment does not legalize cannabis Federally, it simply keeps money out of the hands of people who would seek to tear down a “budding” industry.  With the continued momentum of popular vote and outcry, The Rohrabacher-Farr Amendment will be steadily renewed until Federal legalization comes to pass.

Trump added a signed statement on May 5, 2017 to the medical cannabis provision of the amendment stating,

“Division B, section 537 provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories. I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.”

As of September 2017, he has still not infringed on the sanctity of the Rohrbacher-Farr Amendment nor the Cole Memo.

Jason Mueller

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