Last month President Donald Trump signed a $1.3 trillion spending bill. In doing so, he averted a federal government shutdown – and renewed protections for medical cannabis patients and providers.
Renewed Protections
The spending bill includes the Rohrabacher-Blumenauer provision. This provision prohibits Department of Justice funds from being used to prevent U.S. states and territories “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
U.S. Attorneys’ offices and the Drug Enforcement Administration both operate under the Department of Justice, so the Rohrabacher-Blumenauer restrictions apply to them.
Attorney General Jeff Sessions
On the other side of this issue, Attorney General Sessions has taken actions over the past year in line with his longstanding anti-cannabis position.
In May 2017, Attorney General Sessions asked Congressional leaders to remove the Rohrabacher-Blumenauer provision.
In January 2018, Attorney General Sessions rescinded the “Cole Memorandum.” The Cole Memorandum set forth the Obama-era policy of giving low priority to prosecution of federal cannabis offenses where the offender complied with state law.
Not Following Attorney General Session’s Lead
The spending bill’s passage and President Trump’s signature show that Congress and the White House do not necessarily share Attorney General Sessions’ views on state-authorized medical cannabis, and perhaps state-authorized adult-use cannabis.
The Department of the Treasury also does not appear poised to take a harder line against cannabis. In February 2018, Treasury Secretary Steven Mnuchin told the House Financial Services Committee that he wants to continue giving cannabis businesses access to banking services. The Treasury Department’s Financial Crimes Enforcement Network (FinCEN) issued guidance in 2014 that allows banks to serve cannabis businesses.
Attorney General Sessions’ rescinding of the Cole Memorandum led to fears in the cannabis industry that FinCEN would eliminate its own 2014 guidance. About this, Treasury Secretary Mnuchin said “[t]he intent is not to take it down without a replacement that can deal with the current situation . . . .” He also said “I assure you that we don’t want bags of cash . . . ,” and “[w]e want to make sure that we can collect our necessary taxes and other things.”
The Takeaway
The Rohrabacher-Blumenauer provision has been in effect since 2014. As a budgetary amendment, not a standalone law, Congress must re-authorize it to keep it in effect.
In the meantime, the new spending bill preserves the status quo with respect to the ban on using DOJ funds to prevent implementation of state-level medical cannabis laws. It remains effective only until September 30, 2018.
The debate on cannabis issues will continue later this fall, when midterm elections will determine whether Republicans can hold onto their House and Senate majorities.