As the Republican-dominated House of Representatives finalizes its 2018 budget, the California congressman who has kept federal prosecutors off the backs of America’s medical marijuana community for years is racing to keep legal protections in place. If he fails, patients and providers could once again be exposed to federal prosecution as users and dealers.

Since 2014, Orange County, California, congressman Dana Rohrabacher has finessed a rider onto trillion-dollar spending bills that prevents the U.S. Department of Justice from spending money in medical marijuana states “to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” In effect, this means that if you’re following your state’s medical marijuana laws, the DOJ can’t levy federal charges under the Controlled Substances Act.

Known as the Rohrabacher-Farr Amendment, or Rohrabacher-Blumenauer, the amendment is tied to budgetary bills and so has to be passed yearly. Rohrabacher has relied on guile and timing to get the protections on the federal register each year, but anti-cannabis legislators have taken notice.

When Rohrabacher tried to get protections attached in September to a federal spending bill under another congressman’s sponsorship, he was caught by the GOP-majority House Rules Committee, which blocked a floor vote on the amendment.

Legislative analyst David Mongone, with Americans for Safe Access, says if the amendment was put up for a floor vote in the House, it would likely succeed, as it did in the Senate this summer.

“The last time this provision was voted on in the house, the vote was 242-186. There is wide bipartisan support, but a few key decision makers have been against this provision,” Mongone said.

With no new amendment, patient protections would have expired Dec. 8, but were extended to Dec. 22 as budget negotiations were pushed back to avoid a government shutdown. The negotiations were pushed back again last Friday to Jan. 19, leaving last year’s amendment in effect, for now.

According to his chief of staff, Rick Dykema, Rohrabacher doesn’t expect to get protections into a House budget bill through a floor vote until appropriations talks for the 2019 fiscal year. He’ll still try to attach it to a House omnibus bill for the upcoming fiscal year and, failing that, preserve the version the Senate passed at the upcoming House-Senate conference committee to resolve differences between each chamber’s budgets.

Dana Rohrabacher

Dana Rohrabacher

“People all over the country rely on the protection of the Rohrabacher-Farr Amendment to keep the federal government from prosecuting those who are complying with their state’s medical marijuana laws. While Rohrabacher-Farr has now been extended to January 19, it is essential that our language be included in the omnibus appropriations bill that will finish out the fiscal year,” Dykema said Friday.

Morgan Fox, communications director for the Marijuana Policy Project, said passing the amendment in conference isn’t ideal, as those proceedings are closed to the public, and the organization’s executive director called such an eventuality a “nightmare scenario” in September.

Attorney General Jeff Sessions vehemently opposes marijuana, both medical and recreational, and asked Congress in May to repeal the Rohrabacher-Farr Amendment, calling it “unwise for Congress to restrict the discretion of the department to fund particular prosecutions, particularly in the midst of an historic drug epidemic.”

But whether Sessions plans to crack down on medical patients and providers, if enabled, is less certain. Rohrabacher-Farr’s legal protections extend only to the medical marijuana community, and since his confirmation in February, Sessions has had full authority to kick down the doors of every legal recreational pot shop in the country, arrest their customers and indict their employees as narcotraffickers.

But besides siccing the DEA on interstate blackmarket growers fronting as legitimate providers in marijuana-legal states, the feds have kept the Controlled Substances Act sheathed against legal recreational cannabis. Session’s opposition to marijuana has so far been only posturing, and he said in November that Obama-era federal drug policies deprioritizing DOJ interference with state marijuana legalization in most cases are still in effect.

Patient protections have been on the books since 2014, but weren’t tested in court until last year.

In August 2016, a tribunal of 9th Circuit judges ruled in favor of Washington and California medical growers, who had appealed lower federal court drug convictions, claiming the DOJ couldn’t spend money to prosecute them for lawful medical marijuana use because of the Rohrabacher-Farr protections. Busting the trial back down to the district courts that originally denied Rohrabacher-Farr defenses set a legal precedent that future medical cannabis patient and providers have used within the 9th Circuit.

A Montana provider indicted on federal drug charges mounted a defense earlier this year citing that 9th Circuit ruling, but lost when Montana’s poorly clarified medical marijuana laws revealed a legal gray area he could not be in “strict compliance” with, as the precedent required. The defendant took a plea deal, and Montana’s Legislature filled in gaps in the law.

Patients and providers will find out in January whether following Montana’s new medical marijuana laws will keep them out of federal prison.

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