United States v. McIntosh et al., — F.3d — (9th Cir. Aug. 16, 2016): Appropriations rider bars Department of Justice from spending funds to prosecute marijuana distributors who comply with state laws (for now)
Ever wonder how it’s supposed to work when state laws permit something that federal law prohibits? Ever worry that such a situation could give rise to a mess of eleven consolidated cases raising complex issues of supremacy, standing, separation of powers, and legislative interpretation? Your worries were unfounded: There were only ten.
The Department of Justice prosecuted these ten marijuana distributors, all of whom claimed to be in compliance with their respective states’ marijuana laws, under the federal Controlled Substances Act. The defendants moved to enjoin their prosecutions, pointing to a rider to an omnibus appropriations bill specifying that none of the funds appropriated for DOJ could be used to prevent states that have legalized marijuana from “implementing” their marijuana laws. Their motions were denied, and they took interlocutory appeals. The Ninth Circuit first addressed jurisdictional matters. Interlocutory appeals are seldom permitted in criminal cases, but here the court found that they were authorized by 28 U.S.C. 1292(a), which vests circuit courts with jurisdiction over orders refusing injunctions. (The court was careful to note that this trick will not work most of the time: district court orders “relating solely to requests to stay ongoing federal prosecutions” are not appealable, but here what the defendants actually sought was not to stay their prosecutions but to enjoin DOJ from spending funds in violation of the rider.) The defendants had standing, because they faced the imminent concrete injury of incarceration, and they were appropriate parties to vindicate separation of powers concerns — which are, after all, ultimately intended to protect individual liberty.