The United States Court of Appeals for the Ninth Circuit issued a significant ruling on the criminal enforcement of federal drug law yesterday. In United States v. McIntosh (here), the court held that, where a defendant is fully compliant with the laws of a designated medical marijuana state, the Justice Department cannot engage in a federal prosecution of that defendant under the Controlled Substances Act. The key limitation on the ruling for marijuana growers and dispensers, however, is that they must be in compliance with state law.
The case involves the consolidation of multiple federal prosecutions under the CSA. According to the Ninth Circuit, in one case (McIntosh), the co-defendants were accused of running businesses in Los Angeles that dispense marijuana. The Government also accused them of managing indoor grow sites in L.A. and San Francisco. In another California-based prosecution (Lovan), federal and county law enforcement agents allegedly found more than 30,000 marijuana plants while executing a federal search warrant. In a third prosecution (Kynaston), the Government alleged that, in the course of executing a warrant under Washington state law, investigators found over 1,100 marijuana plants (some growing, some, the court observed, with “root structures of suspected harvested marijuana plants”). In each case, the defendants were indicted on federal criminal charges under the CSA. The Kynaston case also involved charges under federal gun laws.
Although many States have moved in the direction of liberalizing their own drug laws, the federal government has not. It remains a federal crime to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance – among them, marijuana (still a Schedule I controlled substance). See 21 U.S.C. 841(a). But in 2014, and again during the appropriations battles in 2015, Congress passed an appropriations provision which says that in certain states (including California and Washington), the Justice Department may not spend any funds to prevent these states from implementing their own laws respecting medical marijuana. See Section 542 of the Consolidated Appropriations Act of 2016. So, the defendants in these cases sought to dismiss their indictments and obtain mandamus relief from the Ninth Circuit, alleging that the DOJ’s prosecution of them violated section 542 and that any effort by the DOJ to spend funds on such a federal prosecution would violate the separation of powers (by violating the Appropriations Clause, i.e., the executive spending money not appropriated by Congress).
The court agreed. But the decision was not as sweeping as it might have been (or as some might think that it is). This decision does not categorically forbid federal drug prosecutions involving marijuana. Rather, the court interpreted section 542 to forbid DOJ from preventing the implementation of specific state law rules regarding the “use, distribution, possession, or cultivation of medical marijuana.” But DOJ has the power to prosecute private individuals who violate the CSA and who are engaged in conduct not authorized by state law.
Moreover, as the court explained, not only is the text of the legislation subject to a limited interpretation, the rider itself has a temporal limit. The court rightly noted that Congress could alter the existing rider by repealing it and appropriating funds to the DOJ. Or, as the court said, Congress could enact a similar rider in future appropriations legislation (this legislation is good only for FY 2016, so it expires at the end of September – unless renewed, DOJ could then proceed with any prosecution not otherwise barred by law or the statute of limitations). Moreover, the text of the rider applies only to States with respect to medical marijuana. The legislation does nothing to prevent the DOJ from prosecuting those persons who violate the CSA in states that are not among those listed (say, West Virginia or North Carolina or South Dakota).
Still, there is an interesting separation of powers argument here that was not included in the court’s discussion, and perhaps was not even raised by DOJ: can Congress use its spending and appropriations powers in a way that interferes with the authority of the executive branch to carry out its constitutional function of taking care that the laws be faithfully executed?
To be sure, the spending power is among Congress’s most important weapons for setting national policy and forcing State compliance with Congress’s will. But this law is different than a garden-variety conditional spending bill: it actually protects the states against another branch of the federal government, the executive. One of the recognized limits on the spending power is that Congress cannot condition spending in way that compels states to violate some other constitutional provision (i.e., an independent constitutional bar, see South Dakota v. Dole). But again, the instant legislation is different: the issue is whether the “independent constitutional bar” limitation includes the constitutional powers given exclusively to another branch of the federal government.
Congress was not saying here that the CSA was no longer a “law” that the executive has a duty to enforce. Nor did Congress say that the CSA was unconstitutional, and we know that the Supreme Court has upheld Congress’s power to enact the CSA and permit its enforcement even in states with more liberal state drug laws. See Gonzales v. Raich. Congress simply said that, in these states, the executive cannot spend funds in a way that prevents these States from implementing their laws (which, practically, forbids federal prosecution). And Congress has appropriated money for criminal prosecutions generally, just not for these. So is the executive’s power to enforce the law a constitutional bar to Congress’s use of the spending power to prevent the use of federal funds for a particular kind of prosecution? In other words, can Congress use the spending power to limit prosecutorial discretion?
I suspect most would say that the spending power extends to this kind of limit on executive power; in other words, this kind of law is a valid exercise of Article I power. But I detect a separation of powers issue here that might be worth exploring further.