President Trump’s “shithole countries” comment last Thursday continued to rock Washington, DC this week. The president’s outburst, made in the midst of negotiations over immigration reform, has affected everything from international relations to medical marijuana.
A deal on DACA is key to the passage of a federal budget. MMJ protections live inside that budget. And Trump's comment blew up the DACA deal.
Yes, medical marijuana. Trump’s comments effectively blew up a fragile deal on DACA, the Deferred Action for Childhood Arrivals program that affects the immigration status of 800,000 people currently in the United States. The DACA deal was to be the linchpin of the entire federal omnibus budget bill, scheduled for a vote this coming Friday, Jan. 19.
The Rohrabacher-Blumenauer amendment, which prevents the Justice Department from prosecuting patients and caregivers in states that have legalized medical marijuana, depends on the passage of that same federal budget. It’s not a standalone law, it’s a spending measure—it prevents the Justice Department from spending any money on medical marijuana prosecutions.
Budget Set to Expire on Jan. 19
Rohrabacher-Blumenauer protections are written into the current federal budget, but that budget runs out of money on Jan. 19. If congressional leaders can’t find agreement and pass a budget, the federal government may face a shutdown similar to the one forced by House Republicans in 2013. Congress has already passed several continuing resolutions, which keep the federal government open at 2017 budget levels, and leaders are considering yet another continuing resolution that would push the issue into late February.
The current protections will remain only as long as a continuing resolution is in place.
Republicans don’t have enough votes to do that without Democratic support. They need at least nine Senate Democrats to vote in favor of any funding measure. And those votes might not be there.
As the Washington Post reported earlier this morning, “GOP leaders are now turning to a short-term funding measure in hopes of keeping agencies open while talks continue, but Democratic leaders say they are unlikely to support any deal that does not protect young illegal immigrants.”
Kicking It Down the Road, Again
If that continuing resolution is adopted, there will be no vote on the amendment itself, which would temporarily remain in place, according to sources in Rep. Earl Blumenauer’s office. The amendment is currently included in the broader funding bill that is currently in effect. It was maintained in December when Congress passed the last continuing resolution to extend the funding bill to January 19.
Currently there’s no consensus between Democrats and Republicans if the January 19 deadline will mean a continuing resolution for just a couple of months, or a longer term deal—perhaps even a yearlong continuing resolution—that funds the government for a year.
“Congressman Blumenauer is working to maintain R-B in whatever funding bill Congress votes on next,” a staffer in Blumenauer’s office wrote in a response to Leafly’s emailed questions. “At this rate, it’s likely that they will do another continuing resolution—though, who really knows.”
Four Years of Protection
For four years, the Rohrabacher-Blumenauer amendment (formerly known as the Rohrabacher-Farr amendment before Rep. Sam Farr (D-CA) retired) has kept patients and the medical cannabis industry in an uneasy but safe space mostly free from federal prosecution.
The Rohrabacher-Blumenauer amendment must be re-authorized with every new federal budget.
Each time Congress has to renew the amendment, patient advocates and industry insiders hold their collective breath and hope for the best.
The vote to continue the amendment, even when passed, hasn’t always gone well. In June, 2015, when Representative Dana Rohrabacher presented the bill for discussion in the House (it passed 242-186 for only the second time in nine tries, with more than twice as many Democrats as Republicans voting for it), there were serious objections from other Congressmen who have yet to temper their beliefs on the issue.
“Let me say, first of all, this whole idea of medical marijuana is a big joke,” Rep. John Fleming (R-LA-04) said at the time (Fleming was recently appointed deputy assistant secretary for Health Information Technology Reform in 2017). “It is an end run around the laws.”
That comment was followed by Representative Bob Goodlatte (R-VA-06), the chairman of the House Committee on the Judiciary: “Statistics show that 78 percent of the 2.4 million people who began using marijuana last year were aged 12 to 20,” he said. “There is little doubt that this drug poses a significant danger to our children, and I urge a ‘no’ vote on this amendment.”
Pete Sessions Blocked the House Version
So there are stalwart enemies fighting against the amendment and, well, anything could happen. Like it did on Sept. 6, 2017.
That was when the U.S. House Committee on Rules, led by Rep. Pete Sessions (R-TX), who is not related to Attorney General Jeff Sessions, blocked a host of marijuana-related amendments from the federal appropriations bill, including the Rohrabacher-Blumenauer amendment. That sent a shockwave through the medical marijuana patient community.
According to an article in The Hill, the Rohrabacher-Blumenauer amendment was reportedly too divisive for the Republican-run House to come to a decision. “What we are doing now is avoiding the issue of legalization,” Representative Duncan Hunter (R-CA-50) told The Hill at the time.
The amendment was then renewed on September 8 as part of an emergency aid package, renewed again through some spending bills on December 8 and December 22, leading up to a review and potential renewal on January 19.
Cole Memo Move Lit a Fire
Rep. Dana Rohrabacher (R-CA) is confident: “The [loss of the] Cole memo will actually mobilize us to win the day and carry on for at least a year.” (Photo by Colin Young-Wolff/Invision/AP)
But even if nothing happens on the budget on January 19, Jeff Sessions’ recent rescission of the Cole memo has energized proponents of the amendment, who now want to expand it and rework it into a sort of de facto legalization law later this year.
During a Jan. 4 press conference about the loss of the Cole memo and its effect on the amendment, Rep. Earl Blumenauer (D-OR) said that the rescission of the memo doesn’t radically change what he and his colleagues are trying to do.
“We have a commitment to protect and expand the Rohrabacher-Blumenauer amendment,” he said. “There are proposals to expand those protections.”
Rep. Dana Rohrabacher (R-CA) said the Cole memo “will serve our purposes because it will mobilize us and people around the country who have taken the amendment language for granted.”
“Any continuing resolution will keep it here temporarily,” Rohrabacher added. “But then we need to make sure that it is included in any omnibus bill that will then carry on for about a year. During that year, we need to have a comprehensive bill that says not just medical marijuana, but that the fed government will respect all decisions of the states when it comes to cannabis. If they want to have adult use that is fine.”
“The Cole memo will actually mobilize us to win the day and carry on for at least a year,” Rohrabacher said. “But during the year we will know that we have got to make the fundamental changes, a greater version of this amendment, into public law so it doesn’t have to be replaced every year.”
Strong Senate Support
Blumenauer said that the current version of the amendment has good bipartisan support and is in good shape in the Senate. Although the House did not include the amendment in its omnibus budget proposal, the Senate version of the budget did contain the MMJ protections. The final outcome will be determined in a conference committee charged with reconciling the two versions.
“Congressman Rohrabacher and I are both confident that we are in a very strong position for the amendment to be renewed on the 19th,” Blumenauer said. “We have support in both parties to do this, and that will put a spotlight on it. With that broad bipartisan support and great support in the Senate, hopefully this will enable us allow us to ramp up and expand those protections offered in the amendment.”
Positive Signs in the Past Week
There are growing signs that a shift has taken place in not just the perception of the industry as an economic engine, but in the increased support in Congress and among state legislators.
A bill from Congressman Tom Garrett (R-VA-05) – “Ending Federal Marijuana Prohibition Act of 2017” – now has 22 cosponsors, with seven signing on since the Cole memo rescission. Vermont just legalized recreational marijuana through state legislature, the first time that has happened and likely setting a precedent for other states to follow.
January 19th probably won’t be the last time that the Rohrabacher-Blumenauer amendment gets extended. But it may be one of the last times it’s presented in its current form, as bipartisan momentum to complete marijuana legalization picks up steam through 2018 and the language of the amendment comes to include protections for recreational marijuana as well as medical – or simply evolves into a standalone bill.
A Flurry of Action on Legalization
That process may have already begun. Just last week, on January 11, an update to the amendment by Representatives Jared Polis (D-CO-02) and Tom McClintock (R-CA-04) proposes to remove the word “medical” from the Rohrabacher-Blumenauer amendment, effectively expanding the protections offered by the amendment to all states where recreational marijuana is sold. In a press release, Polis reported that 70 bipartisan members of Congress have signed a letter asking leadership to attach the amendment to the next government funding bill.
On Friday, Rep. Barbara Lee (D-CA) introduced a House bill that would effectively handcuff the federal government from enforcing the nation’s cannabis in states that adopt their own cannabis laws.
Sen. Elizabeth Warren (D-NY) says she’s also working on legislation that would “roll back the changes” made by Sessions undoing of the Cole memo and allow states to “make their own determination about their marijuana laws and how they want to enforce them.”
