Since 2014, Congress has included the Rohrabacher-Farr amendment in its annual appropriations bills. It expressly prevents funds from being used by the Department of Justice to prosecute individuals using medical marijuana if their state allows it, nor to interfere with states that opt to legalize medical marijuana.
The funding limitation should remain in place, at the very least, despite Attorney General Jeff Sessions’ expressed desire to reverse course and begin a federal crackdown on medical marijuana.
The funding rider was included in the most recent omnibus appropriations bill, but it appears that this fight will continue into the FY2019 appropriations process this fall.
The policy preventing prosecution of individuals who cultivate, distribute or consume marijuana in compliance with state law reflects the growing public consensus that potential medical treatments shouldn’t be limited by a stubborn refusal to move beyond a 1980s-style drug war treatment of marijuana. It also reflects the principles of federalism and local control.
Medical marijuana has proven effective at treating many types of chronic pain and mitigating both cancer symptoms and the sometimes horrible side effects of chemotherapy. For some, it has been the only option that provides any kind of relief, and it has fewer side effects than traditional pain medications.
Research has also shown that states permitting the use of medical marijuana to treat chronic pain see fewer opioid addictions and opioid overdose deaths, an important additional benefit as lawmakers search for answers to the “opioid crisis.”
Public opinion polls show overwhelming support, as high as 94 percent, for allowing the use of marijuana pursuant to a doctor’s prescription, and a large majority opposes federal efforts to interfere with states that have legalized its use, now up to 29 states plus Washington, D.C.
Candidate Trump also said that as president he would respect the decision of these states to sanction medical marijuana if they chose to do so.
Despite these facts, Mr. Trump’s Attorney General Jeff Sessions is lobbying members of Congress to reverse their stance against prosecuting individuals benefiting from medical marijuana even when in compliance with state law.
The general police power is a responsibility of state governments, but in 1970 the federal government abused the Commerce Clause, later condoned by dubious Supreme Court rulings, to expand its power and pass the Controlled Substances Act.
The resulting drug war and its waste of billions of taxpayer dollars has left us with overcrowded prisons full of nonviolent offenders and horrendous infringements on liberty like civil asset forfeiture.
The Controlled Substances Act classifies marijuana as a Schedule 1 drug, which means that it is considered as having no accepted medical use and has high potential for abuse. This classification is at odds with the scientific evidence, yet the federal government is being characteristically slow in reforming its views.
Consider the prosecution of the Kettle Falls Five, a group of medical marijuana growers from Kettle Falls, Washington. Fully in compliance with state law, they were subjected to a surprise raid on their farm in 2012.
The federal government then argued that the individuals were growing too much marijuana for personal use, even though the amount was within the limits prescribed by state law for medicinal use, and therefore must have been selling it. There was no other evidence to support the claim.
The jury was prevented from hearing that the defendants were treating various ailments and that the marijuana was legal under Washington state law. Prosecutors argued these facts were irrelevant, but the Rohrabacher-Farr amendment was already enacted by the start of the 2015 trial.
Only recently did the federal government acknowledge that the defendants were medical marijuana users, and not dealers, as earlier claimed, and that it illegally pursued the case despite the spending prohibition. One of the defendants, unfortunately, died of pancreatic cancer before the ordeal was settled.
Whatever one’s opinion on medicinal or any other kind of drug use, promoting discord with the states is the worst possible federal drug policy, as it leaves citizens uncertain as to what is and is not allowed.
Moreover, the basic premise of federalism is that citizens, as often as possible, ought to have their local policy preferences respected by the central government. And increasingly states are saying that patients should be free to pursue all effective medical treatments.
In the short term, Congress should maintain its prohibition on prosecuting activities that are legal under state law and reject efforts by the Justice Department to move backward on medical marijuana. Moving forward, it should work to end the disconnect between state and federal policy, ideally by devolving drug questions back to the states where they belong.
• Daniel J. Mitchell is the chairman of the Center for Freedom and Prosperity.