Mimesis Law
25 May 2019

DOJ to California Weed Growers: We Give Up, For Now

Apr. 19, 2016 (Mimesis Law) — According to Jacob Sullum at Reason, the Department of Justice has dropped its appeal of a ruling that disallowed it from spending federal taxpayer dollars to arrest state law-abiding medical dispensaries.

This is a big win for Lynette Shaw, who opened up a dispensary in 1996 after Californians voted to allow medical marijuana. It didn’t take long before the feds came knocking on her door to remind her that it wouldn’t let a little thing like five million voters stop them from prosecuting her.

The litigation dragged on for years before a federal judge granted the feds a permanent injunction preventing Shaw from ever operating a dispensary in 2002. At which point, Shaw decided to honor the injunction much the same way the government honors the 4th Amendment—by scrupulously ignoring it while loudly damning the inconvenience.

The federal government responded with a shrug until 2011, when it sent Shaw a cease and desist letter and started making moves to forfeit her landlord’s property. Fortunately, if there’s one thing that lawyers know to do in a case like this, it’s stall. Shaw’s lawyers managed to drag their heels until 2014, when Congress had one of those weird fever-dreams that leads to sensible legislation, in this case, an amendment to an appropriations bill:

None of the funds made available in this Act to the Department of Justice may be used… to prevent… States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

The language is clear to someone who wants to understand it. For as long as this appropriations language continues (it was reupped in December for another year), the DOJ won’t be able to use taxpayer dollars to pursue people who are complying with state law. Using that language, Shaw moved to dissipate the injunction, arguing that its continued existence made no sense in light of Congress’ decision.

But the DOJ desperately didn’t want to understand the amendment. They wanted forfeitures, and the right to make decisions about local law enforcement at the federal level. They made an argument that the anti-enforcement provision just meant that they couldn’t oppose the passage of laws, or the creation of regulation, not that they couldn’t prosecute individuals. The District Court didn’t find this persuasive. And that’s being kind:

But it comes as no surprise to the Court that the legislative history of Section 538 points in only one direction: away from the counterintuitive and opportunistic meaning that the DOJ seeks to ascribe to it now. Without exception, it appears that both the supporters and opponents of Section 538 in Congress at least agreed that the words mean what they appear to mean.

Because the Department of Justice has dropped its appeal to the District Court’s ruling, that ruling stands. For as long as Congress keeps passing this appropriations language, the DOJ won’t be able to enforce the injunction against Shaw.

This means that cancer patients will, for the time being, be able to treat the side-effects of chemotherapy with marijuana without worrying that they will be hurt or killed or arrested by federal agents. That doctors will be able to prescribe marijuana without risking their medical license. And that growers who, up to now, faced, if anything, increased harassment after the passage of Section 538, can now have a brief respite as long as they continue to follow state law.

It’s thrilling to see such common sense legislation passed and then actually enforced by the courts. But any victory here is potentially short lived. Hard-nosed lovers of liberty, Chuck Grassley and Dianne Feinstein, have already convened a panel to discuss how the federal government should “deal” with state and local laws allowing consumption of marijuana. The panel, naturally, included no one who favored marijuana legalization.[1] It was the Congressional version of convening a panel of foxes to determine whether chickens should be eaten.

And, naturally, any hope that the Supreme Court might step in and prevent the federal government from intervening with these state measures died in 2005, in Gonzalez v. Raich. In Raich, a terminally ill woman,[2] in compliance with California law, sued the federal government for the right to use marijuana to avoid “excruciating pain.” According to the Supreme Court, she argued “persuasively” that denying her marijuana would cause her irreparable harm, but the Court still ruled that the federal government had the power, under the Commerce Clause, to override local laws about drug use (but not, for instance, for domestic violence or guns in school zones). This is true even when an individual user has no impact on interstate markets at all, because we can’t expect Congress to legislate with “scientific exactitude.”

In short, there will be no group of unelected lawyers riding in on a white horse to save us from the Grassleys and Feinsteins of the world any time soon. Which means that it might be time for people to start giving a damn about federalism and the Tenth Amendment. When we let states make choices about how to run their own affairs, we create opportunities for disagreement. Whatever small freedoms we have left as Americans thrive in the small spaces where one part of the government disagrees with another.

So let’s be glad the DOJ dropped its appeal. Let’s be glad that, for now, a stopgap measure prevents the prosecution of any more law-abiding citizens. But let’s be gladder when states can choose for themselves whether their citizens will continue on as casualties in the war on drugs.

[1] Grassley said that including anyone who didn’t share his correct view would only be a “distraction” from the purpose of the panel.

[2] First name, “Angel.” Smart lawyering there.

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