While there is much discussion and concern that the Trump administration will upset state law permitting medical and recreational marijuana use, there are numerous compelling arguments that any attempts can and should fail.
First, in December 2014, the United States Congress’ appropriations bill funding the federal government included the Rohrabacher-Farr amendment, which provides:
None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
This provision, known as Section 542, is included in subsequent appropriation bills.
Further, in United States v. McIntosh, the Ninth Circuit Court of Appeals concluded that § 542 prohibited the Department of Justice from spending funds on the prosecution of individuals who were engaging in conduct permitted by state law, provided that those individuals fully complied with the state law. In doing so, the Court explained that:
Congress has enacted an appropriations rider that specifically restricts DOJ from spending money to pursue certain activities. It is “emphatically … the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for … the courts to enforce them when enforcement is sought.” A “court sitting in equity cannot ‘ignore the judgment of Congress, deliberately expressed in legislation.’”
The Court further recognized Congress’ exclusive role in appropriating funds in accord with the United States Constitution, which provides the “straightforward and explicit command … that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.”
The McIntosh Court thereafter recognized the fundamental doctrines governing the separation of powers and statutory construction:
The Appropriations Clause plays a critical role in the Constitution’s separation of powers among the three branches of government and the checks and balances between them. “Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a Continue Reading
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