Posted on

This week, the United States Congress is hustling to get a spending bill through that will save the government from a partial shut-down. Spending bills have become tricky beasts because they are often vehicles to which legislators attach unrelated provisions. Because the bills are so large and important, other members of Congress are often unable or unwilling to derail important legislation over amendments or riders attached to them. One such little known provision, originally known as the Rohrabacher-Farr Amendment, prohibits the Department of Justice (and this is a minor oversimplification) from spending any funds to prosecute marijuana crime in states where the plant is legal. With the spending bill set for renewal, there’s a chance that the amendment might not be renewed. This means that legal marijuana grows may be at risk.

The provision – now known as the Rohrabacher-Blumenauer Amendment after Representative Farr’s retirement – is the only thing standing between the Department of Justice and a number of major marijuana production prosecutions. And, in fact, the DoJ has chosen to ignore the amendment in some cases, prosecuting growers in Washington (who face six decades in federal prison if convicted) after claiming that the amendment only applies to grows that are conducted in compliance with state law.

This is tenuous legal territory for the Department of Justice, one which has already inspired some rebukes from the courts. Most vexingly, there’s no route for growers to demonstrate that they are in compliance with state laws other than the costly and risky trial process.

We anticipate that – should the Rohrabacher-Blumenauer amendment be renewed – courts will continue to restrict the DoJ’s ability to prosecute marijuana growers in legal states. However, the tenuous nature of amendment highlights the need for a more stable federal approach that doesn’t rely on the passage of contested omnibus appropriations bills. For that, we continue to look to Oregon’s shining stars, Representative Earl Blumenauer and Senator Ron Wyden, who are at the forefront of the Congressional effort to legalize marijuana.
The full story – especially with regards to DoJ legal positions and Congressional appropriations process – is much more complex, and worth a read for those who follow federal policy machinations. Check it out at Slate.