A provision to extend protections shielding state medical marijuana laws from federal interference is part of a 1,070-page bill the incoming House Democratic majority intends to pass this week as part of a plan to end an ongoing government shutdown.
The cannabis protection rider, which has been enacted through appropriations bills since 2014, technically expired with the shutdown last month, leaving medical marijuana patients and providers in an uncertain situation as federal drug enforcement and prosecution efforts are exempted from furlough.
Section 537 of the Democrats’ new bill reads:
“None of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
Thus if the Senate approves the bill after the House presumably does on Thursday, and President Trump signs it into law, state-legal medical cannabis operations would again be protected from enforcement actions by the Department of Justice and its component agencies like the Drug Enforcement Administration, at least through September.
That’s a sizable “if,” however, as the president has drawn a line in the sand over funding for a proposed wall along the Mexican border, a notion that Democrats have refused to go along with. It is unclear if the Republican-controlled Senate will even send an appropriations bill to Trump’s desk without the inclusion of wall funding. Majority Leader Mitch McConnell (R-KY) and Sen. Richard Shelby (R-AL), the chamber’s Appropriations Committee chair, have both said they don’t see a point in voting on something the president won’t sign.
Either way, broader recreational marijuana laws and people operating under them are not covered under the rider in the Democrats’ bill.
The new legislation also contains a bit of bad news for marijuana reform supporters, however, as it continues a current rider that blocks Washington, D.C. from spending its own money to legalize and regulate adult-use cannabis sales even though a 2014 ballot initiative ended the city’s prohibition on low-level possession and home cultivation.
Mayor Muriel Bower (D) said late last year that she planned to present a bill legalizing marijuana commerce to the District of Columbia Council in early 2019. But if congressional Democrats’ legislation is enacted as written, she will have to choose between potentially thwarting federal law or waiting until October, when the new bill and its included riders would lapse.
Advocates believe that Democrats are unlikely to include the D.C. legalization ban language in Fiscal Year 2020 spending legislation, which they will have more time to draft on a provision-by-provision basis this year.
“Democratic appropriators have been incredibly receptive to ending the absurd prohibition of allowing the District of Columbia to implement their own laws as voters intended,” said Justin Strekal, political director for NORML. “Those who would seek to maintain this punitive restriction do so against the very foundation of our federalist structure under the Constitution.”
It is also possible that a broader rider protecting states with recreational marijuana laws, and not just medical cannabis ones, could be adopted as part of next year’s spending legislation.
Incoming House Appropriations Chair Nita Lowey (D), who is the author of the current large-scale spending bill, explained in a letter to colleagues that the proposal mostly amounts to a copy-and-paste job of the Senate’s incomplete work from 2018.
“The only differences between what I will introduce on Thursday and the Senate bills from the 115th Congress are technical, conforming, and scorekeeping adjustments,” she wrote.
So while Democratic leaders technically could have taken the D.C. marijuana sales ban out of their new bill, it’s not as if they went about drafting an entirely new piece of legislation and proactively decided to stand in the way of the cannabis reforms in the nation’s capital.
The fight over which marijuana-related and other riders will be included in FY2020 appropriations bills should heat up this spring.