US House Republicans Nix States’ Rights Cannabis Amendment, Focus on Blocking Rescheduling

This article was updated July 11 with a quote from attorney Shane Pennington. 

U.S. House Democrats on the Appropriations Committee were unsuccessful July 9 in an attempt to prohibit the Department of Justice (DOJ) from interfering with states’ rights and tribal sovereignty regarding adult-use cannabis legalization.

That’s because GOP House lawmakers, who hold a majority, blocked an amendment from Rep. Barbara Lee, D-Calif., during a committee markup on the fiscal year 2025 Commerce, Justice, Science (CJS) and Related Agencies Appropriations Act.

The committee voted, 31-26, to approve the 160-page spending bill, which provides a total discretionary allocation of $78.3 billion, including a nondefense discretionary total of $71.9 billion.

“This amendment would simply bar the use of funds designated for the Department of Justice from prosecuting people who comply with their state, territorial or tribal cannabis laws,” Lee said while introducing her amendment on Tuesday. “It’s really important because, in addition to the states’ rights issues on this, it’s also a racial justice issue.”

Lee cited an American Civil Liberties Union report from 2020 that found Black people are 3.6 times more likely than white people to be arrested for cannabis in the U.S. despite similar usage rates.

While Republicans blocked Lee’s amendment via a voice vote held by committee Chairman Tom Cole, R-Okla., they retained a similar, long-carried provision in the CJS bill that allows states to enact medical cannabis measures without facing federal action. This appropriations rider, commonly referred to as the Rohrabacher-Farr amendment, first became law in December 2014 after six failed attempts.

Specifically, none of the funds made available under the CJS legislation to the DOJ may be used to prevent states or U.S. territories from implementing their own laws that authorize the “use, distribution, possession, or cultivation” of medical cannabis. Lee’s unsuccessful amendment on July 9 aimed to extend those protections for adult-use cannabis.

Rep. Dave Joyce, from Ohio, was the lone Republican who supported the amendment during Tuesday’s markup. Joyce sponsors separate legislation, the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which aims to ensure that each state has the right to determine for itself the best approach to cannabis legalization.

“The [amendment] language mirrors legislation that I have led on before, which authorizes and supports states’ rights,” he said. “Regardless of your position on cannabis, we should be empowering states to regulate the product how they see fit, and this amendment would help just do that. The disparity between state and federal policies has created a loophole that has allowed illicit operators to thrive and jeopardize public safety. It’s time to close a loophole and make sure products are safe and out of the hands of youth.”

Although House Republicans retained the protection for states and territories to implement medical cannabis laws in the 2025 CJS bill, they added new language that aims to prevent the federal government from rescheduling or descheduling cannabis. This comes despite a record-high 70% of Americans supporting cannabis legalization, according to a Gallup poll conducted in October 2023.

According to the CJS legislation:

SEC. 623. None of the funds appropriated or otherwise made available by this Act may be used to reschedule marijuana (as such term is defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) or to remove marijuana from the schedules established under section 202 of the Controlled Substances Act (21 U.S.C. 812).

So, what would this mean for the current rescheduling process?

"If something like this passed, I assume it would make it very difficult for DOJ/DEA to proceed with the rescheduling process given that they would likely have to use appropriated funds (or funds otherwise made available by "this Act") to get the process across the line," Shane Pennington, partner in the Litigation Department at Porter Wright, told Cannabis Business Times.

"That said, I'm not sure this has any real chance of passing," he said. 

The House Appropriations Committee’s vote to advance this bill comes nearly two months after the DOJ issued a notice of proposed rulemaking to reclassify cannabis in the Federal Register, igniting a 60-day public comment period before the department can potentially finalize the rule. President Joe Biden called it a “monumental moment.”

Biden directed the Health and Human Services Department (HHS) in October 2022 to conduct an administrative process to review how cannabis is scheduled. The HHS determined cannabis has medicinal value and recommended to the Drug Enforcement Administration (DEA) in August 2023 that it should be reclassified as a Schedule III drug.

RELATED: White House Moves to Reschedule Cannabis in ‘Monumental’ Decision, Biden Says

Republican lawmakers have questioned the rescheduling process in the months since, specifically challenging whether DEA officials support the rescheduling decision after Attorney General Merrick Garland signed a 92-page notice of proposed rulemaking on May 16—a document they believe should have been signed by DEA Administrator Anne Milgram.

U.S. Reps. Andrew Clyde, R-Ga., and Ben Cline, R-Va., both of whom serve on the House Appropriations Committee, sent a letter to Milgram expressing their “grave concern” over the rescheduling process on May 22.

Rep. Harold Rogers, R-Ky., reiterated this concern during the committee markup on July 9, when Lee offered her amendment.

“The [Biden] administration is currently in the process of examining this drug and considering potentially rescheduling marijuana to a less restrictive degree,” he said. “Though the process is ongoing, we have not yet heard from DEA on this matter, nor has the DEA indicated support or their arguments in support of expanded marijuana availability. As such, I think this amendment is premature, and the agencies in charge of enforcing the Controlled Substances Act should weigh in before we proceed.”

Rep. Matt Cartwright, D-Pa., said he supported Lee’s amendment because it would align law enforcement efforts between state and federal entities.

“It makes little sense to have state and local law enforcement pursuing one set of policies and have federal law enforcement pursuing a different set of policies,” he said. “It’s time to end the disconnect.”

Rep. Andy Harris, R-Md., opposed the amendment, voicing his concerns over Chinese and other Asian-based organized crime groups that have funded unlicensed grows and trafficked cannabis in various states, including California, Maine, Oklahoma and Oregon.

“It’s totally legitimate for the FBI to cooperate with local officials in implementing these laws,” he said. “Why would we possibly want to handcuff the DEA from doing these sorts of investigations?”

Rep. Stephanie Bice, R-Okla., also opposed the amendment, voicing her concerns over organized crime, saying that her home state of Oklahoma has experienced an “explosion” of warehouses with unlicensed grows.

Lee responded that her amendment directly addresses states that have passed cannabis legalization measures, saying they should be allowed to carry out lawful state activity.

“There are penalties for illegal activity, and nothing in my amendment would prohibit the FBI from working with local law enforcement to address illegal activity,” she said. “What we are saying in this amendment is that DOJ funds should be barred from prosecuting people who comply with their state, territorial or tribal cannabis laws. It has nothing to do with the FBI not being able to go in and cooperate with local authorities where states have passed such legalization measures. Penalties already are in place for local law enforcement and the FBI to address these criminal activities in these states.”