A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana
Mikos, Robert A., Stanford Law & Policy Review
The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hardball tactics favored by earlier administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DO J) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws.
On the surface, the Non-Enforcement Policy (NEP) signals a welcome reprieve for the more than 400,000 people now using marijuana legally under state law and the thousands more who supply them. Under the Clinton and George W. Bush administrations, the DOJ had campaigned vigorously against medical marijuana programs. For example, the Drug Enforcement Administration (DEA) raided hundreds of medical marijuana dispensaries and threatened to derail the careers of physicians who recommended marijuana to their patients. Under the Obama Administration, it would seem, patients, physicians, and dispensaries can breathe a lot easier.
What is more, the NEP appears to cede an important policy domain to the states. Medical marijuana has been one of the most salient and contentious federalism battlegrounds of the past fifteen years. Federal officials have railed against the intransigence of the states; state officials have protested overreaching by the national government; and the Supreme Court has twice weighed in to settle jurisdictional disputes over the drug. The NEP seemingly calls a truce in this war, but its impact could extend more broadly. The states' pioneering efforts regarding medical marijuana have already fueled calls for even more ambitious drug law reforms, including proposals to legalize marijuana outright. The NEP could bolster calls for reform and accelerate the pace of change.
Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the NEP. In a nutshell, the Article suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy. To begin, the Article suggests that the NEP will not necessarily stop federal law enforcement agents from pursuing criminal prosecutions. In a twist of irony, the non-enforcement policy itself is not enforceable. It does not create any legal rights a court could invoke to dismiss a criminal case. Even the DOJ will have a difficult time ensuring that federal prosecutors comply with the agency's own stated policy.
Even assuming the NEP ends all criminal prosecutions against state-law-abiding dispensaries and users, federal law could still obstruct state medical marijuana programs by imposing--or allowing others to impose--a wide range of civil and private sanctions on medical marijuana users and suppliers. At bottom, the problem is that the NEP does not repeal the federal ban on marijuana--marijuana technically remains illegal under federal law and that ban triggers a host of civil sanctions on top of the criminal sanctions controlled by the DOJ. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties. For example, as long as marijuana remains illegal under federal law, employers can likely avoid liability under state law for discriminating against employees who use the drug for medical purposes. Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete.
I do not mean to overstate the threat federal law poses to the medical marijuana movement. …