MONDAY, JULY 15, 2019

U.S. Attorney General William Barr voiced support in April for a bipartisan bill that would protect states with legalized marijuana from federal intervention. But, thus far, Congress has approved no such bill for President Donald Trump to possibly sign into law.

Therefore, the official federal position on marijuana remains the same as it has since 1970, when then Attorney General John Mitchell, serving under President Richard Nixon, classified marijuana a Schedule 1 drug—the same designation for heroin and other dangerous narcotics.

'Should Be Left Up To The States'

Barr’s immediate predecessor as Attorney General, Jeff Sessions, announced in January 2018 an end to the policy President Barrack Obama put in place prohibiting federal authorities from interfering with marijuana sales in the states that have legalized the drug. Ten months later, Missourians passed State Constitutional Amendment 2 legalizing medical marijuana.

Barr’s recent statements would seem to represent a softening of the U.S. Department of Justice’s stance toward marijuana since Session’s resignation last fall. President Trump has said the drug’s legalization “should be left up to the states.”

Their words notwithstanding, rigid federal regulations and laws remain in place over the states that have approved medical marijuana’s use. For example, most marijuana dispensary operators can’t bank their proceeds due to federal banking policies. They, therefore, operate primarily on a cash-only basis.

Meanwhile, those legally using—under state law—medical marijuana may risk eviction if they are living in federally-subsidized housing, due to provisions in the U.S. Code’s Controlled Substances Act (CSA) and the “Quality Housing & Work Responsibly Act” (QHWRA) of 1998.

Medical Marijuana Use Still Illegal Federally



The U.S. Department of Housing and Urban Development (HUD) has issued two official memorandums—one dated 2011, the other 2014—spelling out its position on people using medical marijuana while living in federal “assisted housing.” Both documents cite the QHWRA, which, according to the 2014 HUD memo denies admission to federally-subsidized housing to “any household with a member… illegally using a controlled substance” as defined by the CSA. 

• 2011 HUD Memo (PDF)
• 2014 HUD Memo (PDF)

As a Schedule 1 drug, marijuana is considered an “illegal controlled substance” in the CSA federal code, regardless of whether or not state laws permit its use for medical purposes.

The HUD policy for people already living in federal-assisted housing is more muddled. The 2011 memo requires Public Housing Agencies (PHAs) to “establish occupancy standards and lease provisions that will allow the PHA to terminate assistance for use of a controlled substance.” In other words, these agencies are to have provisions in place to evict current residents using a controlled substance. 

But within the same memo, HUD includes what one might consider an out: “The law does not compel such action and PHAs have discretion to determine continued occupancy polices that are most appropriate for their local communities.”

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ALSO IMPORTANT TO KNOW

» The VA & Marijuana—What Veterans Need To Know
Veterans are not denied VA benefits due to marijuana use, but VA clinicians may not recommend medical marijuana. VA pharmacies do not fill medical marijuana prescriptions, and the VA will not pay to have them filled elsewhere.

» The FDA & Marijuana
The Federal Drug Administration has not approved marijuana as a safe and effective drug for treating any condition.

» DEA Wants More Marijuana Grown For Research
"The Drug Enforcement Administration (DEA) isn't exactly known as big fan of marijuana. But... the anti-drug agency is moving to more than quintuple the amount of cannabis that can legally be grown in the U.S. for research purposes—from roughly 1,000 pounds in 2018 to more than 5,400 pounds next year." (Forbes • Aug. 16, 2018)

This Is ‘Confusing’

Terri Powell-Rands calls HUD’s medical marijuana use policies “confusing.” She is the Senior Vice President of Regional Operations for the Preservation of Affordable Housing (POAH). Advocating that “affordable, safe and healthy housing is a right,” POAH operates more than 10,000 affordable housing properties in 11 states, among them the Hawthorne Place Apartments in Independence. 

“POAH is  the private owner/operator of these federally-subsidized housing properties,” said Powell-Rands, who works in the non-profit developer’s Kansas City office. “HUD has different policies for our type of federal housing, compared to the PHAs, which run the older federal public housing projects.

“That means for our properties like Hawthorne we have to abide by the federal policy that marijuana is a Schedule 1 drug, an illegal controlled substance, and strictly prohibited. In our properties and most federally-subsidized housing medical marijuana use is not allowed.”

The 2014 HUD memorandum made no references to Public Housing Agencies. It bluntly stated owners of assisted housing properties “must establish policies which allow the termination of tenancy of any house with a member who is illegally using marijuana or whose use interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.” But in the very next sentence, HUD points out “QHWRA affords owners the discretion to evict or not evict current tenants for their use of marijuana.” (The emphasis on “discretion” is in the original HUD document.)

No Action Taken On ‘Parity’ Legislation

Congresswoman Eleanor Holmes Norton believes HUD policies—and federal statutes—need updating.

Only 15 states and the District of Columbia had approved medical marijuana when HUD issued its 2011 memo. That number had swelled to 23 states as 2014 drew to close. In 2018 Missouri and Utah became the 32nd and 33rd states legalizing medical marijuana use.

Though she’s a non-voting member of the House of Representatives—she represents the District of Columbia—Norton can still introduce legislation. No action has been taken on the “Marijuana in Federally Assisted Housing Parity Act Of 2019” since Norton officially introduced it in the House on April 18.

Norton’s bill would end any confusion about HUD policies as it would “provide that an individual who uses marijuana in compliance with State law may not be denied occupancy of federally assisted housing.”

In a news release, Norton said, ““Individuals living in federally funded housing should not fear eviction simply for treating their medical conditions or for seeking a substance legal in their state. Increasingly, Americans are changing their views on marijuana, state by state, and it is time Congress caught up with its own constituents.”

Norton’s bill would require HUD to establish regulations that restrict smoking marijuana on the grounds of  these federally-subsidized properties—regulations similar, if not identical, to those already prohibiting smoking tobacco. Similar legislation that Norton introduced last year received neither a hearing nor a vote.