Issue Brief: Federal Regulation of Medical Marijuana

February 25, 2019

Issue Brief: Federal Regulation of Medical Marijuana

Understanding the Issues: Federal Regulation of Medical Marijuana

In June 2018, Oklahoma became the 31st state in the nation to legalize medical marijuana. The federal government, however, does not recognize the difference between medical and recreational uses of marijuana. Under the federal Controlled Substances Act, marijuana is classified as a Schedule I drug, which makes any distribution of marijuana a federal offense.

The History of Federal Marijuana Laws

The conflict between state and federal marijuana laws was first addressed by the Obama Administration in October 2009. A U.S. Department of Justice memorandum from Deputy Attorney General David Ogden discouraged the prosecution of individuals who distributed medical marijuana in accordance with state law. The U.S. Department of Justice issued another memorandum on the enforcement of federal marijuana laws under Attorney General James Cole in August 2013. Citing limited resources, the Cole Memorandum deferred the right to challenge states’ marijuana laws where strong, state-based enforcement efforts had been implemented.

Under the Trump Administration in January 2018, Attorney General Jeff Sessions issued a memorandum that rescinded the Cole Memorandum and gave federal prosecutors discretion in prioritizing the enforcement of federal marijuana laws. Specifically, the new guidance directed U.S. Attorneys to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”

Questions Surrounding the Conflict Between State and Federal Marijuana Laws

Questions still surround whether U.S. Attorneys will prosecute individuals under federal law in states where medical marijuana is legal. The federal budget passed by Congress in March 2018 included a rider barring the Department of Justice from enforcing federal marijuana laws in some circumstances. Specifically, the Rohrabacher-Farr amendment states that no funds can be used to prevent any state “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” This language will expire on September 30th at the end of the federal fiscal year, although it has been placed in every federal budget since 2014.

Possible Future Federal Action

With an increasing number of states passing laws permitting medical marijuana, the pressure to modify federal marijuana laws and regulations is growing. One possible modification is to permit the medicinal use of marijuana by lowering marijuana’s classification under the federal Controlled Substances Act. Marijuana is currently classified as a Schedule I drug, which is the most tightly restricted category reserved for substances that have no currently accepted medical use and a high potential for abuse.

A substance may be rescheduled by the Drug Enforcement Administration (DEA) or by Congress. Multiple attempts to petition the DEA to lower marijuana’s classification have been made since the 1970s, but each attempt has ultimately been denied. In addition, multiple bills have been filed in Congress to lower marijuana’s classification since the early 2000s, but these attempts have yet to be met with success.

President Trump made headlines in June 2018 when he publicly stated that he would likely support the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, a bill recently introduced in Congress to create an exemption in the Controlled Substances Act for individuals acting in compliance with laws in states like Oklahoma that have passed their own marijuana regulations. Essentially, the STATES Act ensures that each state has the right to determine the best approach to marijuana regulation within its own borders as long as states and tribes comply with a few basic protections. The legislation has been introduced in both the U.S. House and Senate and referred to committee. With the majority of states now permitting the use, sale or distribution of marijuana in at least some capacity, it is clear federal regulators must prioritize their limited resources and adapt to a changing regulatory structure at the state level.


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Issue Brief: Federal Regulation of Medical Marijuana | Issues