Judge Charles Breyer Gives Teeth to Rohrabacher-Farr Amendment

Judge Breyer

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On Oct. 19, 2015, Charles R. Breyer, a judge of the U.S. District Court for the Northern District of California, narrowed the scope of an injunction against the Marin Alliance for Medical Marijuana, effectively allowing the MAMM to get back into the business of dispensing pot, and prohibiting the United States from spending any public money to pursue the matter further.

The backstory begins in 1998, only two years after California enacted the Compassionate Use Act, when the Justice Department sought declaratory and injunctive relief against MAMM. On supremacy clause grounds, the court granted that relief. The initial preliminary injunction became permanent four years later, when “the defendants declined to reassure this Court that they would not resume their distributive activity.”

Pursuant to the enforcement of that permanent injunction, the Justice Department in November 2011 brought a forfeiture action, seeking to take from MAMM’s landlord the property out of which it operated. This was settled out of court: the landlord appears to have agreed to evict MAMM.

So last month’s decision by Breyer constitutes a dramatic change in course, one that builds on Sec. 538 of the Consolidated and Further Continuing Appropriations Act 2015, commonly known as the Rohrabacher-Farr amendment, passed by Congress in December 2014, and signed into law by President Barack Obama as part of a budget reconciliation act. That amendment provides that “none of the funds made available in this Act to the Department of Justice may be used … to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”


A Bipartisan Idea

The idea of starving the war on pot of the funds necessary for its offensives came to life in July 2007, when a bill with similar language was dropped into the hopper as the joint work of Reps. Dana Rohrabacher, R-Calif. and Maurice Hinchey, D-N.Y. Those names gave the idea a bipartisan coloration from the start. Hinchey, the Democrat of the duo, is the long-time environmental activist who made the phrase “Love Canal” notorious. Rohrabacher, the Republican, served as a speechwriter for the Reagan administration in the 1980s.

Hinchey retired from the House in 2013 and Samuel Farr, D-Calif., picked up the torch, working with Rohrabacher toward the goal of federal respect for state laws in this area. Farr, like Hinchey, is a Democrat with political views generally to the left of center.

Their idea is now the law of the land. But the Justice Department has ignored—or, to be kind, it has narrowly interpreted—that fact and has continued a crackdown on California marijuana use.

Meanwhile the 2016 Appropriations Act has extended the Rohrabacher rider until Dec. 11, 2015. As Breyer put it in his opinion, quite concisely, “the legal and factual circumstances [have] changed.”


Breyer’s Reasoning

The plain language of the amendment modifies what a federal judge may do in states with the sorts of regulations the act contemplates. A court may enforce the Controlled Substances Act therein only with regard to medical marijuana that is not fully in compliance with the state law referenced. Any contrary reading of the statute “tortures” the plain meaning, Breyer wrote.

Looking at legislative history, too, Breyer said that both the proponents and the opponents of the amendment “agreed that the words mean what they appear to mean.” He quoted Farr thus: “This is essentially saying, look, if you are following State law, you are a legal resident doing your business under State law, the Feds just can’t come in and bust you.”

In a footnote, Breyer said that to his recollection, “the Government has yet to allege or even suggest that MAMM was at any time operating in violation of state law.” And that, in his view, ends the matter.

At the very least, Breyer’s decision provides a useful counterbalance to United States v. Firestack-Harvey, the infamous “Kettle Falls 5” decision in the U.S. District Court for the Eastern District of Washington. In that case, decided on Feb. 12, 2015, by Judge Thomas Rice, the defendants had likewise moved that the court either dismiss the action against them or enjoin prosecution in light of the same appropriations-bill rider.


Another Point of View

Rice stressed the interpretive maxim that “repeals by implication are not favored.” If the plaintiffs are right about the meaning of the rider, he said, then it would constitute “an implied repeal or modification of federal prosecutorial authority under the Controlled Substances Act,” and—especially since a rider to an appropriations bill seems an odd place for such an important legislative decision—it behooves Congress to be very explicit about that. It wasn’t.

Thus, again, on Rice’s reading, the courts are required if it is at all reasonable to find an interpretation of the Rider that does not effectively repeal the CSA. He did so to his own satisfaction, and the prosecution of Rhonda Lee Firestack-Harvey and the others went ahead unimpeded. Three of the defendants were found guilty of the manufacturing charge, though they were acquitted of more serious charges.

Despite an overly enthusiastic reception in some quarters regarding Breyer’s decision, the decision does not signal the end of the federal war on marijuana use even in states where such use is legal for some purposes. What seems most likely for the near future is that federal prosecutors in such states will look for defendants who actually or arguably did not cross all of the t’s or dot all of the i’s of their state’s requirements, and will then argue that those defendants have abandoned the shielding effect of those state laws and of the Rohrabacher-Farr amendment.

Further, since missing a cross on one of the t’s in question is pretty easy, one should not underestimate the effective harm that such a compromising legal posture could accomplish.

Christopher C. Faille, a Jamesian pragmatist, was one of the first reporters taking the hedge fund industry as a full-time beat, at the turn of the millennium, with HedgeWorld. His latest book, Gambling with Borrowed Chips, treats of common misunderstandings of the crisis of 2007-08.

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