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Congress Effectively Legalizes Medical Marijuana at the Federal Level

Last week, Congress avoided a government shutdown by agreeing to a continuing resolution to keep the federal government funded for another week. Then over the weekend, US lawmakers agreed to a deal that will extend funding through September while Congress and the White House continue to negotiate longer-term fiscal policy priorities.

The US House passed the budget deal Wednesday.

But amidst Washington’s annual kabuki theater dance around fiscal policy and possible government shutdowns, a little provision was tucked away in the budget bill that addressed medical marijuana in the now 29 states where it’s legal, with West Virginia the most recent to legalize just last month.

It may not be an overstatement to say the provision more or less amounts to Congress legalizing medical marijuana on a federal level. Section 537 of the 1,600 page spending bill reads:

“None of the funds made Available in this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Lousiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, 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.”

So the US Congress hasn’t taken the bold and explicit step of removing marijuana from federal scheduling under the Controlled Substances Act and thereby from DEA jurisdiction as a contraband substance. However, it has exercised its constitutional “power of the purse” to block the US Department of Justice from enforcing marijuana prohibition laws in cases where it’s legal on a state level for medical purposes.

Functionally speaking the result is a de facto legalization of medical marijuana on a federal level. Now it’s not the first time Congress has used this provision (called the Rohrabacher-Farr amendment). It was passed for the first time in 2014 and signed off by President Obama.

The above graph has not been updated to include West Virginia, which has legalized medical marijuana.

Every budget bill since has included some form of the provision, with an ever-growing list of the states that have legalized marijuana for medical purposes. Interestingly enough, Republicans have controlled Congress the entire time this provision has been passed.

The latest version of the provision has included West Virginia, which passed a medical marijuana bill that was signed into law just last month by Governor Jim Justice after sweeping through the state’s House of Delegates 76 – 24 and the state Senate 28 – 6.

For many the state bill arrived not a moment too soon. According to the West Virginia Center on Budget and Policy:

“Marijuana may potentially have a positive impact on West Virginia’s opioid-based painkiller and heroin epidemic by offering another, less-addictive alternative to individuals who are suffering from debilitating medical conditions.”

West Virginia leads the nation in the rate of opiate drug overdoses. Last year, West Virginians were dying at a rate of two people every day from this public health crisis.

The Rohrabacher-Farr amendment means that West Virginians and patients in 28 other states who can benefit from marijuana’s painkilling, nausea-settling, anti-seizure, and other properties of medical value won’t be prosecuted as criminals by the US Justice Department under Attorney General Jeff Sessions.

Sessions, who wants the federal government to ramp up enforcement of drug prohibition laws in medical marijuana states, famously said that “Good people don’t smoke marijuana,” and that marijuana is only “slightly less awful” than heroin. It would seem Congressional Republicans don’t see it the same way.

Photo Credit: Brian Goodman / shutterstock.com

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