A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana

Robert A. Mikos

Vanderbilt University - Law School

February 23, 2011

Vanderbilt Public Law Research Paper No. 11-07
Stanford Law & Policy Review, Vol. 22, p. 633, 2011

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy. First, the NEP won’t necessarily stop federal agents from pursuing criminal prosecutions of marijuana dispensaries. In a twist of irony, the non-enforcement policy itself is not enforceable. It doesn’t create any legal rights a court could invoke to dismiss a criminal case. And the DOJ itself will have a difficult time ensuring that federal prosecutors comply with the agency’s stated policy. Second, even assuming the NEP would block criminal prosecutions, federal law could still obstruct state medical marijuana programs by imposing - or enabling others to impose - a wide range of civil and private sanctions on medical marijuana users and their suppliers. The problem is the NEP doesn’t repeal the federal ban on marijuana. Marijuana technically remains illegal under federal law, and the possession, cultivation, or distribution of the drug trigger a host of civil sanctions not addressed by the NEP. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties. For example, employers can likely skirt liability under state law for discriminating against employees who use marijuana for medical purposes. Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete.

Number of Pages in PDF File: 38

Keywords: cannabis, commandeering, constitutional law, crime, criminal law, department of justice, DEA, decriminalize, decriminalization, DOJ, drug, enforce, enforcement, federalism, Holder, legalize, marijuana, medical marijuana, Obama, Odgen, pot, preemt, preemption, proposition 215, prohibition, RICO, vice

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Date posted: February 26, 2011 ; Last revised: June 9, 2011

Suggested Citation

Mikos, Robert A., A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana (February 23, 2011). Vanderbilt Public Law Research Paper No. 11-07; Stanford Law & Policy Review, Vol. 22, p. 633, 2011. Available at SSRN: http://ssrn.com/abstract=1768127

Contact Information

Robert A. Mikos (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-7184 (Phone)
615-322-6631 (Fax)
HOME PAGE: http://law.vanderbilt.edu/faculty/faculty-detail/index.aspx?faculty_id=227
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