Ryan Alexander-Tanner

DID THE FEDS just give up on enforcement actions against state medical marijuana programs?

Yes, they did. They threw in the towel.

Last October, I wrote in this fine publication about a case where a federal judge smacked down the US Department of Justice (DOJ) for trying to shutter a medical marijuana dispensary in Fairfax, California. It was a surprising and powerful ruling, where the judge dressed down the feds for their interpretation of a Congressional spending bill amendment, which he a called "tortured reading" that "defies language and logic." The bill in question prohibits the DOJ from spending money to prevent states from implementing medical marijuana laws. I wrote that the DOJ would appeal the ruling, and it did. But last week the DOJ caved, filing a motion to dismiss its own case.

This extraordinary lawsuit had been going on for 17 years. The dispensary in question was founded by a tough lady with large hair named Lynnette Shaw, who proclaimed that the win signals "the end of the medical marijuana war." That is probably true, as long as Congress continues to renew the spending bill amendment, which it did last December. And with yet another medical marijuana state coming online last week (Pennsylvania), it seems that the genie is out of the bottle for medical marijuana. Congress and the courts are starting to get that.

To fully appreciate the ramifications of the DOJ retreat, it's helpful to understand a bit about how courts work. Shaw's dispensary had pummeled the DOJ in California federal district court, which sits in one of 13 US appellate court districts. When the DOJ took its appeal, the case went to the Ninth Circuit Court of Appeals. That circuit covers California, Oregon, Washington, and several other Western states and tiny islands. By my count, 10 of those states have medical marijuana programs.

If the feds had been further chastised for "tortured readings" by the Ninth Circuit Court of Appeals, it would have established a dominant precedent throughout the Western US, and as far afield as the Northern Mariana Islands. Courts in other circuits would have noted the decision, and it would have been "persuasive authority" in their consideration of similar issues. Because the Ninth Circuit is generally considered one of the most liberal in the nation, and because the earlier DOJ loss already sets a limited precedent, the DOJ finally cut its losses and ran.

You may have observed that the current spending bill forbids the DOJ from messing with medical marijuana, but is silent as to recreational weed. It would be nice to see the next iteration include that category as well. For now, though, it seems unlikely that the feds will mess with marijuana businesses that act in compliance with state programs, including recreational programs like we now have in Oregon. Things are looking up.