On Tuesday, August 16, 2016, the Ninth Circuit Court of Appeals issued its opinion in United States v. McIntosh, a group of ten consolidated interlocutory appeals addressing whether an appropriations ban applies to prosecutions of individuals accused of marijuana crimes in states with medical marijuana laws. All of the appellants were indicted for various infractions of the Controlled Substances Act based on their participation in their respective states’ medical marijuana schemes. The appellants moved to dismiss their indictments or enjoin their prosecutions based on a rider in a federal appropriations bill, which stated:
None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332–33 (2015). The rider was extended and is currently effective through September 30, 2016.
The appellants in the various cases moved to dismiss or enjoin on the basis of the rider, arguing that the Department of Justice was prohibited from using funds to pursue prosecutions. The Department argued that it was merely prohibited from prosecuting states with medical marijuana schemes, but was still free to use the appropriated funds to prosecute individuals who violated the Controlled Substances Act regardless of their compliance with state medical marijuana laws.
The Ninth Circuit first noted that although the Medical Marijuana States had enacted laws permitting the use of marijuana for medicinal purposes, marijuana remains illegal under the federal Controlled Substances Act for all purposes. The Ninth Circuit concluded that the superior authority, the federal government through the Controlled Substances Act, could prevent a subordinate authority, the Medical Marijuana States, from implementing rules permitting the conduct by punishing individuals who are engaged in the conduct officially permitted by the subordinate authority. In this instance, the Department of Justice can prevent the Medical Marijuana States from implementing their rules permitting the use of marijuana in medicinal settings by prosecuting individuals for use, possession, distribution, or cultivation of marijuana. The Department of Justice need not take any official action against the states in order to prevent implementation of the states’ rules. The Ninth Circuit therefore concluded that § 542 prohibited the Department of Justice from spending any funds to prosecute individuals in Medical Marijuana States who were engaging in conduct fully permitted by their states’ laws.
Some appellants requested that the Circuit enjoin the Department of Justice from prosecuting any individuals for marijuana violations in Medical Marijuana States, arguing that the implementation of laws necessarily includes all aspects of giving effect to the laws, including prosecutions for violations of the laws. The Ninth Circuit refused to expand the meaning of § 542 to include the prosecution of any individuals in Medical Marijuana States regardless of compliance with their states’ laws. The Circuit found that the Department of Justice was free to prosecute individuals who failed to comply with their state medical marijuana regulations. Because the district courts had not made findings about whether the individuals being prosecuted were in compliance with their respective states’ regulatory schemes, the Ninth Circuit remanded for further proceedings on this issue.
The Ninth Circuit noted the temporal nature of the proceedings, in that the Department had been authorized to prosecute the various individuals initially but lost its funding through the appropriations rider. The Circuit warned that at any moment, Congress could re-authorize the prosecutions of individuals in Medical Marijuana States, or Congress could permanently deprive the Department of funding to prosecute individuals complying with their states’ medical marijuana schemes. In the words of the Circuit, “Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”
The Ninth Circuit cautioned that marijuana remains illegal under the federal Controlled Substances Act, and anyone in any state who possesses, manufactures, or distributes marijuana is committing a federal crime for which they could be prosecuted for up to five years after the date of the offense. The Circuit reminded the district courts of the need to balance the remedy for violations of § 542 with the appellants’ Speedy Trial Act rights. The Circuit also remarked that, under the Supremacy Clause, a state cannot “legalize” any conduct that is illegal under federal law.
The orders were vacated and the cases were remanded for further proceedings to determine whether the appellants were in compliance with their states’ medical marijuana laws.