New Administration in Washington Could Significantly Change Federal Drug Policies

Numerous states have modified their drug laws in recent years, easing many of the excesses of the “War on Drugs” and relaxing certain restrictions. More than half of the states in the U.S. now allow medical marijuana use to some extent, and a handful of states have decriminalized recreational use. At the federal level, however, drug laws have not changed. Federal law enforcement, at least hypothetically, has the authority to enforce federal drug laws in states that have partially or wholly decriminalized marijuana. It has not done so because of decisions by the Department of Justice (DOJ) and other executive agencies. With a new administration now in office and new nominees for Cabinet positions awaiting confirmation by the Senate, these policies could change. This uncertainty is not likely to have much impact in Texas, where the medical use of a marijuana-based product is allowed only in extremely limited circumstances. In certain other states, the impact could be significant.

The federal Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., prohibits marijuana under nearly all circumstances. Each state has its own drug laws. See, e.g. Tex. Health & Safety Code § 481.001 et seq. Many states allow medical marijuana use, and several states, such as Colorado and Washington, now allow its recreational use. In Texas, the Compassionate Use Act allows the use of low-THC cannabis, under medical supervision, solely for the treatment of intractable epilepsy. Tex. Health & Safety Code § 487.001 et seq., Tex. Occ. Code § 169.001 et seq. A bill introduced in the Texas Senate in December 2016, S.B. 269, would authorize medical marijuana, but its prospects for passage seem low.

As a general rule, the federal government may not direct state and local law enforcement agencies or officials to enforce federal laws. See Printz v. United States, 521 U.S. 898, 935 (1997) (“Congress cannot compel the States to enact or enforce a federal regulatory program.”) Unless state or local law enforcement agencies voluntarily offer their cooperation, federal enforcement is the responsibility of executive agencies like the DOJ.

An August 2013 memorandum defines the DOJ’s current policy regarding state-level medical and recreational marijuana laws. Known as the “Cole Memo” after its author, Deputy Attorney General James M. Cole, the memorandum defines federal enforcement priorities, which include preventing marijuana distribution to minors, “drugged driving,” the use of firearms in marijuana production, and the transportation of marijuana from states where it is legal to states where it is not.

Essentially, the DOJ will not interfere with state marijuana laws, provided that state and local law enforcement meet these priorities. The Cole Memo is merely a guidance document. It has no force of law as either a statute or a regulation. A new Attorney General, who might be far less interested in allowing states to pursue their own systems of marijuana laws, could quickly revoke it and substitute a new policy.

Other Cabinet departments could also take a more active role in state marijuana enforcement. A 2014 guidance document from the Treasury Department allows financial institutions to handle accounts for state-licensed marijuana businesses, albeit with some major limitations. An October 2013 memo from the National Labor Relations Board extends federal protection to labor disputes in legal marijuana businesses. These policies could also change under the new administration.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified federal crime attorney Michael J. Brown has defended people against alleged state and federal charges in West Texas for over 20 years. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a skilled and experienced criminal justice advocate.

More Blog Posts:

Medical Marijuana Laws Cause Shifts in Court Rulings on Marijuana Odor and Probable Cause for Search Warrants, Texas Criminal Lawyer Blog, September 7, 2016

Texas Law that Took Effect Last Year Bans 1,000 Chemicals Potentially Used in Synthetic Marijuana, Texas Criminal Lawyer Blog, April 15, 2016

Marijuana Could Be Decriminalized at the Federal Level in Several Ways, Not Just by an Act of Congress, Texas Criminal Lawyer Blog, February 12, 2016


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