Federal - State Law Conflict

Attorney General Jeff Sessions is in the news for two reasons today: he’s testifying before the Senate Intelligence Committee on his possible links to Russia and a letter he wrote to Congress indicating his disapproval of the Rohrabacher-Farr Amendment has surfaced.

Last month we reported that Congress extended the Rohrabacher-Farr Amendment.  No sooner was this extension passed,  but Sessions wrote to Congress seeking its repeal.   As many readers know, the Amendment prohibits the Justice Department from using federal funds to prevent states from implementing their own medical marijuana laws.  It is, in essence, a victory for states’ rights, in the sense that they can decide whether to make medical marijuana legal, without fear of federal government interference.

Yesterday massroots.com, and today The Washington Post reported that in May, Sessions wrote to Congress stating that “it would be unwise for Congress to restrict the discretion of the Department [of Justice] to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long term uptick in violent crime.”

Of course, the “historic drug epidemic” to which Sessions refers has nothing to do with cannabis, but involves opiates, and, according to the Washington Post, a growing body of research shows that opiate overdoses decrease in states in which medical marijuana is legal.  Sessions also wrote that “[t]he Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous traffickers who threaten American lives.”  It is difficult to understand how Rohrabacher-Farr prevents the federal government from enforcing the Controlled Substances Act against those engaged in trafficking in drugs across state lines.

Sessions’ position is contrary to that of the President who expressed support for medical marijuana laws during his campaign.  However, over the past several months there have been a number of mixed signals from the Administration regarding enforcement of the federal prohibition on the possession and sale of cannabis.  These mixed signals have created tremendous uncertainty in all segments of the cannabis industry, but it is hard to believe that the Administration really intends to disrupt what has become a multi-billion dollar industry.

 

 

We recently reported on the inclusion of the Rohrabacher-Farr Amendment in the current Congressional budget deal.  The controversy over whether the Justice Department should be permitted to enforce federal laws in states where marijuana is legal for medical purposes only seemed settled, at least until the Consolidated Appropriations Act of 2017 expires in late September.  Due to the signing statement that President Trump issued when approving the Act, however, we may have blogged too soon. Continue Reading Reading the Signs: Is a Marijuana Crackdown in Our Future?

The appointment of Jeff Sessions as Attorney General created a great deal of uncertainty in the medical marijuana community.  Sessions has a long history of opposing the legalization of marijuana, whether for medical or recreational purposes.  “Marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide,” Sessions said in an interview with radio talk show host Hugh Hewitt in March. Continue Reading See You in September: Rohrabacher-Farr Amendment in Budget Deal

Seyfarth Synopsis: In response to recent comments from senior members of the Trump Administration, lawmakers are exploring novel ways to protect the burgeoning marijuana industry (and the many jobs that it is projected to create) in states where it is legal, including legislation that would prevent state and local agencies from using state resources to assist federal enforcement efforts. Continue Reading Sanctuary States … from Federal Marijuana Enforcement?

On January 10, 2017, Alabama GOP Sen. Jeff Sessions began confirmation hearings with the Senate Judiciary Committee for his potential role as Attorney General in the upcoming Trump administration.   During these hearings he was asked questions that shed light on possible differences between the Trump administration Department of Justice’s stance on marijuana as compared to the Obama administration.

In response to a question about federalism as it relates to marijuana laws from Sen. Mike Lee, a Utah Republican, Sessions stated:

“One obvious concern is that Congress has made the possession of marijuana in every state an illegal act. If that is not desired any longer, Congress should pass a law to change it. It’s not the attorney general’s job to decide which laws to enforce. We should enforce the laws as effectively as we are able.”

Continue Reading Jeff Sessions Senate Confirmation Hearing Hints at Enforcement Attitudes Towards Marijuana

As state laws regarding medical and recreational marijuana evolve, lawyers face a variety of ethical issues relating both to counseling clients in marijuana related businesses (MRBs)and to financing or participating in MRBs.

The ethical dilemma stems from the fact that while state laws continue to expand the legality of marijuana, its use and possession in any form is still against federal law.  Most state ethical rules contain a rule similar to Rule 1.2(d) of the American Bar Association Model Rules of Professional Conduct (Model Rules) which states:

A lawyer shall not counsel a client to engage, or assist a client in, conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of a proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, meaning, or application of the law.

The dilemma created by Rule 1.2(d) is that it does not make a distinction between state and federal law. Continue Reading Lawyers Beware: Navigating the Legal Ethics of Counseling or Participating in the Marijuana Industry

 

On August 16, in the case of United States v. McIntosh[1], the U.S. Court of Appeals for the 9th Circuit, reversed decisions from the District Court for the Northern District of California denying the appellants’ request for  relief against the Department of Justice (the “DOJ”) in connection with indictments brought against them for violation of the Controlled Substances Act.  The Court held that the appellants had standing to seek relief under a rider to the Consolidated Appropriations Act[2] prohibiting the DOJ from spending funds to prevent states’ implementation of their medical marijuana laws (“§ 542”). Continue Reading Ninth Circuit Limits DOJ Prosecution of Persons Complying with State Marijuana Laws

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

 

The Justice Department can’t interfere with states’ medical pot laws.

Note: we’re preparing a blog post on this topic – keep watching this space!

 

The Ohio Supreme Court signaled Wednesday it might rewrite its ethics rules to permit lawyers in the state to help medical marijuana businesses, a move that would no doubt be welcomed by MMJ entrepreneurs and attorneys.

 

The state has awarded preliminary licenses to more than 20 companies to grow and process marijuana in Maryland, a major step forward in the effort to make medical cannabis available to patients in Maryland.

 

 

Anything we missed that everyone needs to know?  Tell us in the comments.

Yesterday sparks flew as word was out that the DEA would be making some important announcements relating to the treatment of marijuana as a Schedule 1 substance under the Controlled Substances Act (CSA).

Today, the excitement died down as the DEA issued a 180-page denial (inclusive of attachments; the actual denial is only three pages long) of a petition to initiate rulemaking proceedings to reschedule marijuana, filed by a Mr. Bryan Krumm in December 2009.

Mr. Krumm’s petition requested that marijuana be removed from Schedule I of the CSA claiming that: 1) marijuana has accepted medical use in the U.S.; 2) studies have shown that smoked marijuana has proven safe and effective; 3) marijuana is safe for use under medical supervision; and 4) marijuana does not have the abuse potential for placement in Schedule I.

After gathering all necessary data, DEA involved the Department of Health and Human Services (HHS), which then conducted its own scientific and medical evaluation into Mr. Krumm’s assertions. HHS concluded that marijuana does have a potential for abuse, does not have an accepted medical use in this country, and does not have an acceptable level of safety for use even under the care of a medical professional.  For now, marijuana remains a Schedule I drug under the CSA, and therefore is still illegal under federal law.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

There’s a good argument to be made that James Cole has had a bigger impact on the U.S. cannabis industry than any other single individual in modern history.

 

Even though Oregon voters legalized recreational marijuana in 2014, you can’t legally buy the stuff in more than 100 Oregon communities. That’s because some city and county governments have banned recreational marijuana businesses.

 

If signed, Illinois would be the 17th state — and third largest — to treat possession of marijuana in small amounts as a civil offense rather than a criminal one.

 

And finally, if you’re visiting Hugo, Colorado, feel free to drink the water.

Water in the town of Hugo is not contaminated with THC after all, state tests concluded Saturday morning.  The suspicion was first announced Thursday after county officials, using field test kits, got some positive tests results.

 

Anything we missed?  Let us know in the comments.