Trump's Victory Makes the Hinchey-Rohrabacher Amendment Critical

The cannabis movement and industry is, and should be, concerned about federal law enforcement on cannabis under a President Trump and, particularly, under a potential Attorney General Rudy Giuiliani or Chris Christie.  We should not forget, however, the role of Congress, even if marijuana distribution remains a crime.   

The Hinchey-Rohrabacher Amendment (sometimes also called the Rohrabacher-Farr Amendment) is a part of the annual federal budget bill that has, for the last two years, limited DOJ spending on enforcement in contravention of state medical cannabis policy.  

Earlier this year, the United States Court of Appeals for the Ninth Circuit, which has jurisdiction over appeals from California, Oregon, Nevada, and Washington, issued a decision in United States v. McIntosh.  That decision clarified that individuals being prosecuted by DOJ could challenge their prosecution as a violation of the spending limits of the Hinchey-Rohrabacher Amendment.  Simply put, the Court held, if the defendant is acting in compliance with state medical cannabis laws, then the DOJ could not prosecute:

If DOJ wishes to continue these prosecutions, Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana.  

This is an important limit on the power of a Trump Justice Department.

There are a few key limitations on Hinchey-Rohrabacher's reach, however.  First, the Amendment is part of the budget bill, and needs to be passed every year to continue to be be effective.  It has passed each year of the last two years with bipartisan support (last year by 242-186 in the House, with 86 Republicans voting in favor), and has already passed the Senate Finance Committee this year.  Given the nationwide electoral progress on medical and recreational cannabis, especially the broad support in Florida for medical marijuana, significant backsliding on the issue seems unlikely (though cannot be ruled out given the uncertain situation on Washington).

Second, the Amendment only applies to medical cannabis operations, not to adult use operations.   Legislators have attempted to extend the Amendment to cover non-medical adult use, but those efforts so far have fallen short.  Now that additional states has passed recreational legalization, there is hope that the measure might gain more traction in future years.  But it remains to be seen whether members of Congress from the newly legalized adult-use states (California, Nevada, Massachusetts, and apparently Maine) can push the effort over the top.