More than half of the states in the U.S. now allow the use of medical marijuana to some extent. At the same time, federal law still treats marijuana as having “no currently accepted medical use in treatment in the United States.” 21 U.S.C. §§ 812(b)(1)(B), (c)(I)(c)(10). This has, obviously, created conflicts between federal and state law enforcement. Congress relieved this tension somewhat in 2014, when it passed legislation known as the Rohrbacher-Farr amendment as part of a spending bill. This amendment prohibits the U.S. Department of Justice (DOJ) from spending funds on law enforcement activities that interfere with lawful state medical marijuana systems, which range from the extensive in California to the restrictive in Texas. Texas marijuana lawyers are aware, however, that officials in the new White House administration have sought to use federal resources against state medical marijuana. So far, the Rohrbacher-Farr amendment remains in force.
California was the first state to allow the use of medical marijuana with a doctor’s prescription. Voters approved Proposition 215 in November 1996, also known as the “Compassionate Use Act.” Cal. Health and Safety Code § 11362.5. Twenty years later, in November 2016, voters in that state approved Proposition 64, which authorized the sale, purchase, and possession of limited amounts of marijuana for recreational use. Id. at § 11362.1. Most states have not gone this far, but states that allow medical marijuana in some form outnumber those that do not. Texas is among the states that allow medical marijuana use, although it is strictly limited to “low-THC cannabis” to treat “intractable epilepsy.” Tex. Health & Safety Code Ch. 487, Tex. Occ. Code Ch. 169.
The U.S. Supreme Court has rejected at least two challenges to the applicability of federal marijuana laws over state medical marijuana laws. The court rejected a common-law medical necessity defense in U.S. v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001). Justice Thomas, writing for the court, noted that federal criminal law generally does not recognize common-law defenses unless Congress specifically includes them in a statute. He concluded that “a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act.” Id. at 491. The court held that the Commerce Clause of the U.S. Constitution allows a federal prohibition of marijuana production, distribution, and possession, regardless of state medical marijuana laws, in Gonzales v. Raich, 545 U.S. 1 (2005).