by Marie Taylor
On November 8, 2016, Florida became the twenty-sixth medical marijuana state in the nation.[1] A decisive 71% of Florida voters approved Florida’s proposed constitutional amendment number two.[2] A similar proposal was on the ballot in 2014, but fell just short of the 60% supermajority approval requirement.[3] The 2016 amendment allows medical use of marijuana by individuals with debilitating medical conditions, and is intended to expand the narrow statutory program.[4] A “Debilitating Medical Condition” is defined in section (b)(1) of the amendment text:
“Debilitating Medical Condition” means cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post‐traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.[5]
The text permissively includes “other debilitating medical conditions of the same kind or class as or comparable to those enumerated,” which leaves licensed physicians considerable discretion in determining whether a patient qualifies.[6] Although the amendment’s approval is a significant victory for thousands of Floridians, and for advocacy groups, it will be quite some time before prescriptions are filled and treatment is available. Under the amendment, the Florida Department of Health has until July of 2017 to promulgate regulations for implementation and enforcement of medical marijuana production, possession, and use.[7]
The general election on November 8th, 2016, produced several victories for marijuana reform across the nation.[8] Arkansas and North Dakota joined Florida in legalizing marijuana for medicinal purposes, while Montana eased its medical use restrictions.[9] California, Massachusetts, Maine, and Nevada each passed laws providing for recreational marijuana use.[10] In total, twenty-eight states and Washington, D.C. have now legalized marijuana for medicinal use, eight of which allow marijuana for recreational use.[11]
Despite the fact that marijuana possession and distribution is a federal crime under the Controlled Substances Act,[12] Congress did not intend to preempt state police powers or to interfere with the traditional allocation of state-federal resources in this area. The Controlled Substances Act will preempt state law only when it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to accomplishment and execution of the full purposes and objectives of the federal statute.[13] Under President Obama, the Department of Justice has not targeted state medical marijuana providers and has maintained a federal policy of non-intervention.[14] Practically speaking, as long as state medical marijuana laws do not force an individual to break federal law, they will remain in force.[15] For example, states must adhere to the eight priorities articulated in the Department of Justice’s 2013 guidance document, which was published to ensure a robust regulatory regime, both on paper and in practice.[16]
However, lingering questions remain for both proponents and opponents of marijuana reform alike. One such concern is President Donald Trump’s stance on the issue.[17] At a campaign rally in Nevada in October, then-candidate Trump said: “In terms of marijuana and legalization, I think that should be a state issue, state-by-state.”[18] Regardless, the soon to be appointed Attorney General,[19] and other Department of Justice appointees, will have the most significant impact on marijuana reform going forward.
In a 2016 appropriations rider, Congress prohibited the Department of Justice from using funds to prevent states from implementing and enforcing their own laws “that authorize the use, distribution, possession, or cultivation of medical marijuana.”[20] Additionally, the Ninth Circuit concluded that, at the very least, Section 542 of the appropriations rider prohibited the DOJ from spending federal funds for the prosecution of individuals who engaged in conduct permitted by a state’s medical marijuana laws.[21] However, Congress retains the power to appropriate funds for such prosecutions tomorrow.[22] Although progress for marijuana reform has been substantial, it is too soon to adequately anticipate and assess the future outlook for both medical and recreational use of marijuana in 2017 and beyond.
[1] Michael Auslen, Medical Marijuana Amendment Approved, Miami Herald (Nov. 8, 2016, 8:30 PM), http://www.miamiherald.com/news/politics-government/election-results/article113444523.html.
[2] Id; Fla. Const. art. X, § 29, No. 2 (proposed 2016).
[3] Amendment 2: Medical Marijuana Initiative Defeated in Florida, WFTV (Nov. 5, 2014, 6:26 AM),
http://www.wftv.com/news/local/amendment-2-voters-decide-legalization-medical-mar/107156800.
[4] Auslen, supra note 1.
[5] Fla. Const. art. X, § 29, No. 2.
[6] Id.
[7] Id.
[8] Christopher Ingraham, Marijuana Wins Big on Election Night, Wash. Post (Nov. 8, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/11/08/medical-marijuana-sails-to-victory-in-florida/?utm_term=.7fb09e92cad3.
[9] Id.
[10] Elijah Wolfson & David Yanofsky, One in Every Five Americans is About to Get Legally High AF After This Election, Quartz (Nov. 9, 2016), http://qz.com/832370/marijuana-legalization-succeeded-in-the-2016-elections-despite-the-results-of-the-presidential-race/.
[11] 28 Legal Medical Marijuana States and DC, ProCon.Org (Dec. 28, 2016, 11:36AM), http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.
[12] 21 U.S.C. § 903 (2016).
[13] 21 U.S.C. § 903; see also U.S Dep’t of Justice, Office of the Deputy Att’y Gen., Memorandum, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013).
[14] U.S. Dep’t of Justice, Office of the Deputy Att’y Gen., Memorandum, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013).
[15] Id.
[16] Id.
[17] Emily Gray Brosious, What Does a Donald Trump Presidency Mean for Marijuana Reform?, Extract (Nov. 10, 2016, 12:39 PM), http://extract.suntimes.com/news/10/153/23570/donald-trump-presidency-mean-marijuana-reform.
[18] Jenna Johnson, Trump Softens Position on Marijuana Legalization, Wash. Post (Oct. 29, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/10/29/trump-wants-marijuana-legalization-decided-at-the-state-level/?wpisrc=nl_daily202&wpmm=1.
[19] Attorney General Confirmation Hearing, Day 1, Part 2, C-SPAN (Jan. 10, 2017), https://www.c-span.org/video/?420932-101/attorney-general-nominee-jeff-sessions-testifies-confirmation-hearing.
[20] Consolidated Appropriations Act, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332–33 (2015).
[21] United States v. McIntosh, 833 F. 3d 1163, 1168 (9th Cir. 2016).
[22] Id. at 1179.