Funding for the federal government is set to run out on Friday, unless Congress enacts a bill extending current spending levels before the midnight deadline. Also set to expire is a current rider that prevents the Department of Justice from interfering with state medical cannabis laws.
If lawmakers fail to enact an extension, the marijuana protections would disappear but, because drug enforcement are considered “excepted” from furloughs, the Justice Department would be newly empowered to enforce federal cannabis prohibition wherever it wants, regardless of state laws.
That means U.S. Attorney General Jeff Sessions, a longtime vocal legalization opponent, would get a legal green light to direct the Drug Enforcement Administration (DEA) and federal prosecutors crack down on medical marijuana patients and providers for the first time since he took office in February.
“All agents in DEA field organizations are excepted from furlough because they support active counternarcotics investigations,” a Justice Department shutdown contingency plan says. “DEA investigations need to continue uninterrupted so that cases are not compromised and the health and safety of the American public is not placed at risk.”
The same goes for federal prosecutors.
“As Presidential Appointees, U.S. Attorneys are not subject to furlough,” the shutdown plan says. “Excepted employees are needed to address ongoing criminal matters and civil matters of urgency throughout the Nation. Criminal litigation will continue without interruption as an excepted activity to maintain the safety of human life and the protection of property.”
The medical cannabis budget rider was first enacted into law in late 2014, and has since been extended for each subsequent fiscal year. In May, Sessions sent a letter to congressional leaders asking them not to continue the medical marijuana rider into 2018.
“I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime,” he wrote. “The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”
President Trump, who tweeted earlier this year that favored a temporary government shutdown, has suggested to his advisers in recent weeks that a congressional failure to enact a new spending bill would be politically beneficial for his administration, according to the Washington Post.
Among key issues in behind-the-scenes negotiations are funding for the president’s proposed wall along the U.S.-Mexico border and protections for immigrants brought to the U.S. as children. Because many House Republicans are opposed to a short-term budget extension on principle, Democratic votes will likely to be needed to pass it. Senate Republicans will also need support from Democrats to reach the 60-vote threshold needed to advance the legislation.
That means negotiations are fluid and the outcome uncertain with just days to go before the deadline.
Congressional leaders are considering various scenarios to avoid a shutdown while talks concerning a full Fiscal Year 2018 spending package are ongoing. Most options involve a short-term extension of current funding levels — along with policy riders like the medical marijuana one — into late December or early next year. One resolution pending before the House Rules Committee would extend the deadline to December 22, just days before the Christmas holiday.
Setting aside the important question of whether the medical cannabis rider will be included in next year’s bill — and it is a big question, since House leaders blocked lawmakers from even voting on whether to include the policy that chamber’s version of Justice Department spending legislation this year — the current budget brinksmanship on Capitol Hill means the marijuana protections could disappear as soon as Saturday morning.
The Senate Appropriations Committee voted in July to include the medical marijuana provision in its version of the 2018 Justice Department funding bill. Last week, a bipartisan group of 66 House members sent a letter urging congressional leaders adopt the Senate cannabis language into broader legislation extending federal funding and policy riders into next year.
But just because the medical cannabis rider could disappear in the coming days doesn’t automatically mean there would be a federal crackdown. There is no such rider in law that protects broader state laws allowing recreational marijuana use from federal interference, and Sessions’s Justice Department hasn’t yet launched a crackdown on businesses operating under those policies.
Sessions’s personal preferences aside, a large-scale move against state-legal cannabis consumers and businesses, particularly those focused on medical use, would likely be politically damaging for the Trump administration. It would represent a reversal of then-candidate Donald Trump’s repeated campaign pledges to respect state marijuana laws and run counter to his statements that he personally knows people who benefit from medical cannabis.
In October, a Gallup poll found that 64 percent of Americans now support legalizing marijuana, including majority support across party lines. Other surveys have shown support for medical cannabis as high as 94 percent among U.S. voters.
Sessions has in recent weeks sent mixed signals about his plans for federal marijuana enforcement policy under the Trump administration.
Last month, he testified before Congress that an Obama-era Justice Department memo that generally allows states to implement their own marijuana laws without interference remains in effect. But last week he told reporters at a briefing that his department is actively conducting talks about potential changes to the policy.