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Congressional Researchers Update Lawmakers On ‘Legal Consequences’ Of Federal Marijuana Prohibition In Light Of Rescheduling Effort



With the Biden administration moving to reschedule marijuana, congressional researchers have updated a pair of reports outlining the “legal consequences” of the persisting federal-state cannabis policy gap and detailing existing protections for state medical marijuana programs under a spending bill rider.

The reports from the Congressional Research Service (CRS) were both updated on Tuesday, noting prominently that the Justice Department is now moving to reclassify marijuana as a Schedule III, rather than Schedule I, drug under the Controlled Substances Act (CSA).

This comes about a week after CRS issued a separate report focused on the impact, and limitations, of a Schedule III reclassification, including the fact that the reform would not bring state marijuana markets into compliance with federal law because it would still be considered illegal without a prescription.

One of the newly updated reports is titled “State Marijuana ‘Legalization’ and Federal Drug Law: A Brief Overview for Congress.”

“In light of recent and proposed changes to state and federal marijuana regulation, this Sidebar provides an overview of the divergence between federal and state marijuana law,” the analysis says. “It then briefly discusses the legal consequences of the divergence and outlines certain related considerations for Congress.”

The five-page document first generally explains how marijuana is currently classified under the CSA, while noting that cannabis containing no more than 0.3 percent THC by dry weight is considered federally legal hemp.

“If marijuana were moved from Schedule I to Schedule III, it could in theory be dispensed and used by prescription for medical purposes,” CRS said. “However, prescription drugs must be approved by FDA. Although FDA has approved some drugs derived from or related to cannabis, marijuana itself is not an FDA-approved drug.”

While federal prohibition is still in force, and would remain so even with rescheduling, the report notes that “all but three states have changed their laws to permit the use of cannabis for medical purposes,” while nearly half have enacted adult-use legalization.

“Notwithstanding the foregoing state laws, any activity involving marijuana that is not authorized under the CSA remains a federal crime anywhere in the United States, including in states that have purported to legalize medical or recreational marijuana,” it says.

It then goes through a variety of potential criminal liabilities for marijuana-related activity under federal statute.

“For individuals, participation in the state-legal marijuana industry may have adverse immigration consequences. Violations of the CSA may also affect individuals’ ability to receive certain federal government benefits. In addition, federal law prohibits gun ownership and possession by any person who is an ‘unlawful user of or addicted to any controlled substance,’ with no exception for users of state-legal medical marijuana.”

The report concludes with considerations for Congress, pointing out that while the Drug Enforcement Administration (DEA) has agreed to move forward with rescheduling, lawmakers have “broad authority to change the status of marijuana by legislation before or after DEA makes any final scheduling decision.”

“If Congress seeks to regulate marijuana more stringently, it could, among other options, repeal the appropriations rider discussed above, increase DOJ funding to prosecute CSA violations, or limit federal funds for states that legalize marijuana,” it said.

CRS separately updated a report that focuses on the appropriations rider that’s been annually renewed each year since 2014. It generally prevents the Justice Department from using its funds to interfere in the implementation of state medical cannabis programs.

While the legislation is meant to address the “disparity between state and federal laws,” it does not extend the protections to adult-use states, the report explains.

“On its face, the appropriations rider bars DOJ from taking legal action against the states directly in order to prevent them from promulgating or enforcing medical marijuana laws,” it says. “In addition, federal courts have interpreted the rider to prohibit certain federal prosecutions of private individuals or organizations that produce, distribute, or possess marijuana in accordance with state medical marijuana laws. ”

“In those cases, criminal defendants have invoked the rider before trial, seeking either the dismissal of their indictments or injunctions barring prosecution,” it continues, adding that federal courts have generally declined to apply the rider outside of that pre-trial context, by upholding a prohibition on cannabis use by people on probation, for example.

“While the medical marijuana appropriations rider restricts DOJ’s ability to bring some marijuana prosecutions, its effect is limited in several ways,” CRS said. “If Congress instead opted to repeal the rider or allow it to lapse, DOJ would be able to prosecute future CSA violations as well as past violations that occurred while the rider was in effect, subject to the applicable statute of limitations.”

“Because the medical marijuana appropriations rider applies to marijuana specifically, regardless of how the substance is classified under the CSA, rescheduling marijuana would not affect the rider,” the report says.

“Congress has the authority to enact legislation to clarify or alter the scope of the appropriations rider, repeal the rider, or decline to include it in future appropriations laws. For instance, Congress could amend the rider to specify whether strict compliance with state medical marijuana law is required in order to bar prosecution under the CSA or provide a different standard that DOJ and the courts should apply. Congress could also expand the scope of the rider to bar the expenditure of funds on prosecutions related to recreational marijuana or other controlled substances.”

As both reports note, Congress could move to eliminate the federal-state marijuana policy gap by removing it from the CSA altogether. Other proposals, including one recently filed by top Senate Democrats, would go further by legalizing cannabis and setting up a federal regulatory framework for the plant.

But given the divided Congress and the anti-cannabis record of House Speaker Mike Johnson (R-LA), it seems unlikely that the bill will advance this session. Instead, advocates and stakeholders are watching to see how the rescheduling effort plays out, while also putting pressure on lawmakers to pass a bipartisan marijuana banking bill that’s pending Senate floor action.

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Photo courtesy of Mike Latimer.

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