Congressional Researchers Highlight Differing Court Interpretations Of Medical Marijuana Protections

As the Biden administration moves forward with its proposal to reschedule marijuana, congressional researchers are highlighting divergent federal court interpretations of an existing policy protecting state medical cannabis programs from Justice Department intervention.

In a Legal Sidebar from the Congressional Research Service (CRS) that was published on Thursday, analysts also laid out additional considerations for Congress, including possibly clarifying the intent of the appropriations rider that provides the medical marijuana protections—or legalizing cannabis altogether.

The report first provided an overview of the longstanding spending bill rider covering DOJ that prevents the department from using its funds to interfere in state medical marijuana programs, with a focus on how different federal courts have ruled on the scope of those protections.

“On its face, the appropriations rider bars DOJ from taking legal action against the states directly in order to prevent them from promulgating or enforcing medical marijuana laws,” CRS said of the policy, which was first enacted in 2014. “In addition, federal courts have interpreted the rider to prohibit certain federal prosecutions of private individuals or organizations that produce, distribute, or possess marijuana in accordance with state medical marijuana laws.”

“In those cases, criminal defendants have invoked the rider before trial, seeking either the dismissal of their indictments or injunctions barring prosecution,” it said. “By contrast, courts have generally declined to apply the rider outside the context of initial criminal prosecutions.”

There are two distinct interpretations of how the rider should be applied that CRS focused on: One from the U.S. Court of Appeals for the First Circuit and another from the U.S. Court of Appeals for the Ninth Circuit.

In a 2016 case, the Ninth Circuit held that while the rider prevented DOJ from preventing the implementation of state medical cannabis laws, federal courts could still restrict registered patients from using cannabis as a condition of probation.

The court also broadly ruled in a separate 2016 case that—in order to be safeguarded under the appropriations policy—people must “strictly comply” with their state medical marijuana law.

“Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate [the rider],” the Ninth Circuit said.

The court also applied that standard to a later case involving two medical cannabis workers who were prosecuted for smoking marijuana while they were processing products for sale. Because the workers couldn’t demonstrate that they themselves were registered patients, the Ninth Circuit said they could be prosecuted regardless of the appropriations rider.

But the First Circuit diverged from the Ninth Circuit interpretation in a 2022 case that involved medical cannabis workers in Maine who were accused of distributing large quantities of marijuana outside of the state program and even to buyers outside of the state. The First Circuit did allow the prosecution to go forward, but it disagreed with the interpretation about the need for “strict” compliance with state medical cannabis laws in order to enforce the congressional rider.

“The court noted that the text of the rider does not explicitly require strict compliance with state law and that, given the complexity of state marijuana regulations, ‘the potential for technical noncompliance [with state law] is real enough that no person through any reasonable effort could always assure strict compliance,’” CRS explained. “Thus, the First Circuit concluded that requiring strict compliance with state law would likely chill state-legal medical marijuana activities and prevent the states from giving effect to their medical marijuana laws.”

“It remains to be seen whether and how the difference in reasoning between the Ninth Circuit and the First Circuit will make a practical difference in federal marijuana prosecutions,” the report says.

“In theory, the First Circuit’s analysis could make it easier for defendants to invoke the appropriations rider to bar federal prosecutions, because they could do so even if they had not acted in strict compliance with state law. In practice, however, resource limitations and enforcement priorities have historically meant that federal marijuana prosecutions target only individuals and organizations that have clearly not complied with state law. Thus, one of the First Circuit judges who considered Bilodeau agreed with the panel’s interpretation of the rider but wrote a concurrence noting that, in practice, the First Circuit’s standard might not be ‘materially different from the one that the Ninth Circuit applied.’”

CRS also noted other limitations of the appropriations rider, including the fact that Congress could repeal the protections or let the provisions lapse in a future spending bill. The protections also do not extend to adult-use marijuana programs, despite several attempts by lawmakers to broader the shield. Additionally, the policy only restricts actions of the Department of Justice, and not other areas of the government.

The analysis further notes that “participants in the cannabis industry may face numerous collateral consequences arising from the federal prohibition of marijuana in areas including bankruptcy, taxation, and immigration. Many of those legal consequences attach regardless of whether a person is charged with or convicted of a CSA offense, meaning the rider would not affect them.”

It also said that, because the rider broadly refers to marijuana—without specifically dealing with its scheduling status under the CSA—the Biden administration’s plans to reclassify cannabis as a Schedule III drug “would not affect the rider.”

“Congress has the authority to enact legislation to clarify or alter the scope of the appropriations rider, repeal the rider, or decline to include it in future appropriations laws. For instance, Congress could amend the rider to specify whether strict compliance or substantial compliance with state medical marijuana law is required in order to bar prosecution under the CSA or provide a different standard that DOJ and the courts should apply. Congress could also expand the scope of the rider to bar the expenditure of funds on prosecutions related to recreational marijuana or other controlled substances.”

CRS also noted that Congress have wider latitude to affect federal marijuana laws outside of the appropriations process. It could impose restricted policies to increase DOJ’s ability to enforce prohibition, or it could choose to enact proposals to end cannabis criminalization, for example.

“Additional proposals from the past few years would seek to address specific legal consequences of marijuana’s Schedule I status by, for example, enabling marijuana businesses to access banking services or removing collateral consequences for individuals in areas such as immigration, federally assisted housing, and gun ownership,” it said.

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