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The Green Sheet Online Edition

January 12, 2015 • Issue 15:01:01

Congress of two minds about legal pot

The U.S. Department of Justice has been ordered to stop making trouble for individuals and businesses that take advantage of state medical marijuana laws. However, the demand, attached to the $1.1 trillion federal budget bill that was signed into law Dec. 16, 2014, is not a total condemnation of the federal government's efforts to stamp out marijuana legalization initiatives.

"It merely restricts the use of funds in a one-year budget bill," noted a web post by the National Law Review. "The bill does not exempt marijuana as an illegal Schedule I drug under the federal Controlled Substances Act."

In fact, the very same bill includes a provision that blocks Washington, D.C., from implementing a local referendum legalizing possession of marijuana there. Washington, a city of almost 700,000, is a "federal district" under the exclusive jurisdiction of Congress, which can veto any local laws.

A budgetary maneuver

Typically when the voters of the "district" approve controversial laws opponents will attempt to invalidate those measures with budgetary maneuvers. Tucked into the 701 page budget bill signed into law last week was a provision stating: "None of the Federal funds contained in this Act may be used to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any Schedule I substance under the Controlled Substances Act."

The budget bill is an omnibus package of legislation that appropriates funds for federal agencies and programs through Sept. 30, 2015. It was a must-pass bill, because without operating funds the government would have had to shut down. Often lawmakers will use a must-pass bill such as a budget measure to advance initiatives that might lack support to pass on their own. Appropriately enough, these omnibus legislative initiatives are known as "Christmas trees" among Washington insiders.

The budget bill provision addressing medical marijuana addresses funds appropriated to the Department of Justice, and specifically refers to medical marijuana laws in 12 states and Washington, D.C. It instructs that no funds appropriated to the DOJ "may be used" to prevent those states and Washington "from implementing their own State laws that authorized the use, distribution, possession or cultivation of medical marijuana."

Prior steps toward leniency

In 2013, the DOJ updated its marijuana enforcement policy "in light of recent state ballot initiatives that legalize, under state law," the production, sale and use of marijuana. The update made it clear that pot remains an illegal drug under the federal Controlled Substances Act, but that going forward, the Justice Department will focus its "limited investigative and prosecutorial resources" on cases involving trafficking across state lines, organized gangs, selling to minors, violence, and the use of public land to grow or smoke pot.

In January 2014, the U.S. Department of the Treasury's Financial Crimes Enforcement Network (FinCEN) issued written guidance on how the new Justice Department position affects its enforcement priorities under the Bank Secrecy Act. FinCEN stated financial institutions need to assess the risks of having marijuana-related businesses as customers, just like they would assess the risks of any other business.

In a statement, provided to the Denver Post in January 2014, Visa said, "Given the federal government's position and recognizing this is an evolving legal matter with different standards applicable in different states, our local merchant acquirers (banks) are best suited to make any determination about potential illegality." end of article

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