The federal government will shut down at midnight on Friday, barring an unexpected, last-minute bipartisan deal. That puts medical marijuana patients and providers at risk of being arrested, prosecuted and sent to prison by Jeff Sessions’s Justice Department.
Under a shutdown scenario, an existing budget provision that prevents the Drug Enforcement Administration (DEA) and other agencies from spending money to interfere with state medical cannabis laws would expire. But federal drug enforcement and prosecution actions, which are exempted from furloughs, would continue.
Why Might The Government Shut Down?
A bill to extend federal funding levels and policy riders like the marijuana one through February 16 was approved by the House on Thursday. But a heated dispute over immigration issues has jeopardized its passage in the Senate, where a significant number of Democrats are refusing to support any bill that does not provide protections to people who were brought to the U.S. as children.
Earlier this month, Attorney General Sessions rescinded Obama-era guidance that has generally allowed states to implement their own cannabis laws without federal intervention. That has left recreational marijuana businesses and consumers without a key protection they’ve relied on since 2013, but the ongoing existence of the medical cannabis spending rider has continued to keep patients and providers safeguarded from federal attacks.
An unintended consequence of Senate Democrats’ move to block the funding extension bill and shut down the government over immigration issues is that medical marijuana patients and industry operators would be at much greater risk, as soon as this weekend.
Why Would Drug Enforcement Continue Under A Shutdown?
“All agents in DEA field organizations are excepted from furlough because they support active counternarcotics investigations. This encompasses 21 domestic divisions, 7 regional foreign divisions, critical tactical support groups including the El Paso Intelligence Center and the Special Operations Division, forensic sciences, and technical surveillance support,” 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 document reads. “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.”
Politics Of Marijuana And Immigration Collide
Democrats, especially those considering 2020 presidential bids, are facing enormous pressure from their progressive base not to go along with yet another bill in a series of short-term funding extensions that do not include protections for young immigrants known as “DREAMers.” Because Republicans hold only 51 seats in the chamber, and a handful of GOP members are also opposing the spending resolution, leaders need support from Democrats to reach the critical 60-vote threshold to advance legislation.
The medical cannabis budget rider was first enacted into law in late 2014, and has since been extended for each subsequent fiscal year. Last May, Sessions sent a letter to congressional leaders asking them not to continue the medical marijuana rider into Fiscal Year 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.”
Setting aside the important question of whether the medical cannabis rider will be included in full Fiscal Year 2018 spending legislation that congressional leaders continue to negotiate — and it is a big question, since House leaders blocked lawmakers from even voting on whether to include the policy in that chamber’s version of Justice Department spending legislation — the current budget brinksmanship on Capitol Hill means the medical marijuana protections could disappear as soon as Saturday morning.
A Shutdown Allows Old Federal Marijuana Prosecutions To Resume
If the provision lapses, it wouldn’t just allow new actions against people violating federal marijuana laws. It would also allow earlier medical cannabis prosecutions that were suspended under to the rider to resume.
A federal judge in a California case last August, for example, wrote that the prosecution of two marijuana growers would be “stayed until and unless a future appropriations bill permits the government to proceed. If such a bill is enacted, the government may notify the Court and move for the stay to be lifted.”
The failure to enact a new bill continuing the protections would have the same effect under a shutdown scenario, given that enforcement of federal drug laws would still continue.
Long-Term Status Of Marijuana Protections Unclear
The Senate Appropriations Committee voted in July to include the medical cannabis rider in its version of the 2018 Justice Department funding bill. But without the provision being approved on the House side, its long-term continuance will be determined behind closed doors by a bicameral conference committee that merges the two chambers’ proposal into a single bill to be sent to President Trump.
Advocates have also pushed to expand the protection to encompass all state marijuana laws, not just those focused on medical access. A measure to do that came just nine flipped votes of passage on the House floor in 2015, and the number of states with legalization has doubled since then. However, Republican congressional leaders have blocked subsequent cannabis measures from advancing to floor consideration, including as recently as this week.
In the meantime, medical cannabis patients and providers will wait to see if Jeff Sessions and his DEA agents will regain the ability to come after them for the first time since 2014 this weekend.
Marijuana Isn’t Addictive, Former A.G. Eric Holder Says
The nation’s former top law enforcement officer is not worried that the legalization of marijuana will lead to addiction.
“I’ve never seen any scientific evidence that points you to concerns about addiction through the use of marijuana,” former U.S. Attorney General Eric Holder said in an interview published on Friday by NY1.
The comments by the former A.G. call into question cannabis’s current status as a Schedule I drug. That category is supposed to be reserved only for substances with no medical value and a high potential for abuse. In fact, it would mean that marijuana should be moved to at least Schedule III, where drugs with “moderate to low potential for physical and psychological dependence” are categorized.
Although Holder did not move to reclassify cannabis when he had the power to do so as attorney general, he did specifically endorse such a change just months after leaving office.
“I certainly think it ought to be rescheduled,” he said in a 2015 interview with PBS.
And he still feels the same way.
“We need to move marijuana from Schedule I, so research can be done,” Holder said in the new NY1 interview. “It is classified now on the same level as heroin is, and clearly that is inappropriate.”
While he did nothing to officially recategorize marijuana as attorney general — and continually passed the buck to Congress when asked about the issue — Holder’s Justice Department did issue guidance, known as the Cole Memo, which generally allowed states to implement their own cannabis laws without federal interference.
Current Attorney General Jeff Sessions rescinded that memo earlier this year.
In the new interview, Holder said he thinks the federal government should continue letting states implement their own legalization laws.
“Let those be laboratories to see where we want to be,” he said. “I think if you allow the states to experiment we’ll ultimately come to a national consensus about what it is we ought to do with regard to marijuana.”
He also spoke about unfair enforcement of cannabis criminalization.
“One of the things that I am concerned about, though, is the racial disparity you see in the enforcement of marijuana laws,” he said. “You see African Americans, Latinos using marijuana at just about the same rates as whites, and yet seeing rates of arrest four, five times as great as it is for whites. That is something that I think is extremely troubling.”
Photo courtesy of US Embassy New Zealand.
Congressional Committee Protects Medical Marijuana From Jeff Sessions
A powerful congressional panel voted on Thursday to continue shielding medical marijuana patients and providers who comply with state laws from prosecution by the federal government.
While the provision has been federal law since 2014, when it was first attached to legislation that funds the U.S. Department of Justice, its continuance has been in question because of recent efforts by Republican leadership to prevent votes on cannabis amendments. But in a stunning bipartisan move, the House Appropriations Committee voted to add the provision as a rider to legislation funding U.S. Attorney General Jeff Session’s department for Fiscal Year 2019.
(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)
Congressional Republicans Block Votes On Hemp Amendments
In the latest development in a series of anti-cannabis moves, congressional Republican leadership has blocked consideration of several industrial hemp amendments.
Supporters were seeking to attach the measures to the large-scale Farm Bill, which sets food and agriculture policy for the country, but the House Rules Committee on Wednesday decided that the proposals cannot be considered on the floor.
The anti-cannabis chairman of the panel did, however, reveal that a broader deal for industrial hemp might be in the works.
One of the measures the committee killed, submitted by Reps. James Comer (R-KY) and Earl Blumenauer (D-OR), along with a bipartisan list of cosponsors, would have legalized hemp and made it eligible for crop insurance.
“Hemp is a crop with a long and rich history in our country,” Comer said in introducing his amendment before the committee. “It was grown by many of our founding fathers.”
Comer, who is a former Kentucky agriculture commissioner, said his state’s existing industrial hemp research program, which is authorized under a previous Farm Bill enacted in 2014, “has been a great success.”
He also spoke about the economic potential of the plant. “Times are tough in rural america,” he said. “For rural Kentuckians, industrial hemp has provided a new crop and business opportunity.”
But in a party-line move, the committee voted 8 to 3 to reject a motion to add Comer’s amendment to the list of proposals approved for floor consideration.
Another hemp amendment, filed by Reps. Thomas Massie (R-KY) and Jared Polis (D-CO), would have removed hemp from the list of federally banned substances.
A third proposal, submitted by Rep. Andy Barr (R-KY), sought to create “a safe harbor for financial institutions that provide services to hemp legitimate businesses” that operate under state-authorized research programs.
“There is a proud history in American and in Kentucky [for hemp] as an agriculture product,” Barr said when testifying for his amendment, noting that it can be used in over 25,000 products.
Under current law, banks that work with legitimate hemp companies “fear reprisal from federal regulators,” Barr said, arguing that his proposed measure would protect financial institutions “from unnecessary interference from bank examiners and regulators” and give producers rights that “every other American crop enjoys.”
The committee did not hold specific votes on those two measures.
Rules Committee Chairman Pete Sessions (R-TX) has made a consistent practice of blocking cannabis measures from advancing over the past several years.
Sessions, seemingly mistakenly, told Comer during the Wednesday hearing that the U.S. Drug Enforcement Administration (DEA) has “a clause…that industrial hemp should be declassified under their Schedule I drugs, which they concur, which is the position you hold, too.”
A hemp lobbyist told Marijuana Moment in an email that he had not heard of the DEA taking a pro-hemp position.
Polis, who as a Rules Committee member made the unsuccessful motion to let the full House vote on Comer’s amendment, argued that hemp is a “common sense area” that enjoys bipartisan support. The measure, he said, would simply “treat industrial hemp as the agricultural commodity that it is.”
While Sessions and other GOP panel members were not swayed, the chairman did hint just before the vote that there may still be hope for hemp reform, saying that the issue would be “determined by an agreement that would be reached” with Senate Majority Leader Mitch McConnell (R-KY).
McConnell last month filed a hemp legalization bill, which Comer’s amendment closely modeled. Fully a fifth of the Senate is now signed on as cosponsoring that legislation, and the majority leader has already announced plans to attach his hemp language to the version of the Farm Bill being considered by the Senate this month.
While it is unclear what exactly Sessions was suggesting when he referred to an “agreement” with McConnell, it may have been a reference to the conference committee process that will merge the House and Senate’s respective versions of the Farm Bill into a single proposal after each chamber passes its legislation. If McConnell succeeds in attaching hemp legalization to the Senate bill, it would then be up for consideration as part of the final legislation sent to President Trump for signing into law.
In 2014, McConnell successfully inserted a provision to prevent federal interference in hemp research programs in that year’s version of the Farm Bill.
Photo courtesy of Chris Wallis // Side Pocket Images.