In 1978, a program called the Compassionate Investigational New Drug program was established, in which the United States government began supplying certain individuals with marijuana that is grown at the University of Mississippi. Although the program ended in 1992, to this day four people are known to be living and receiving this government grown cannabis.

What provisions, either in the CSA or a separate law, allow the federal government to ignore their own federally enacted laws so that they may grow and provide marijuana to patients?

  • @K-C I didn't mean to say that they are breaking the law. However, the Controlled Substance Act is their own federally enacted law. Perhaps a better way to say this is "What provisions allow them to ignore their own federally enacted law?" Does that make more sense? – Cannabijoy Jan 11 '17 at 7:28
  • The same things that allow them to breach their own firearm or vehicle or materials possession laws, no doubt. The legislature can generally legitimise or give exception for or take exception to whatever it likes, barring ultimate law that says otherwise. – Nij Jan 11 '17 at 9:59
  • @Nij I'm wondering if anyone can explain what those provisions are within the Controlled Substance Act. This may need to be a separate question, but if Congress has this authority, does this mean Congress can make laws that allow them to hold a monopoly over any product they choose to ban everyone else from producing? – Cannabijoy Jan 11 '17 at 11:10
  • The provision doesn't have to be in the CSA. It could be part of another law or regulation concerning government representative actions, or just a piece that green-lit that particular programme. And yes, Congress can probably take a monopoly over something if it wanted to; they don't because that would be politically, economically, socially, and personally inefficient. There are better ways to control something than own it - like having thousands of small armed forces set up to do it for you according to rules you made. – Nij Jan 11 '17 at 11:38

It is not absolutely against the law to produce schedule 1 substances (such as marijuana). Per 21 USC 822(a)(1),

Every person who manufactures or distributes any controlled substance or list I chemical...shall obtain annually a registration issued by the Attorney General

which entails specific permissions to make, distribute etc, under (b). If you turn to the prohibitions in 21 USC 841, it starts the list of prohibitions saying "Except as authorized by this subchapter, it shall be unlawful...". The code is liberally littered with the expression "unauthorized". The Attorney General is given authority under 21 USC 811 to make rules, thus can permit production.

It's not actually clear who the grower is in the Compassionate IND program. In the Randall case, the "doctrine of necessity" was apparently invoked successfully which led to charges against Randall being dropped. The legal details of the AGs blind eye towards states like Washington are a little hazy, as it were.

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  • This is what I was looking for. So the Attorney General has the ability to give a permit to the University of Mississippi to grow, a permit to someone else to roll the joints and package them, and basically a permit to anyone they want to? Wow, I didn't realize how much power this person has! It seems their main job is to keep issuing permits to allow the government to do whatever they want. Thank you. – Cannabijoy Jan 12 '17 at 7:04

The Compassionate Investigational New Drug program is based on the common law defence of necessity, that is, if you 'need' to possess a controlled substance in the relevant sense then you can't be convicted of an offence for possessing it.

The program might well have been illegal (clearly the United States thought it was illegal if they opted for settlement rather than just dropping the charges) but the nature of settlement is that you agree to things you don't agree with.

Whether the United States lets you do whatever or whether they decided to prosecute you is up to the relevant prosecutors, who have a discretion about whether to begin a prosecution at all and, if they have begun a prosecution, they have a discretion to abandon it or to agree to a settlement.

In subsequent years, the United States decided to push back against the medical necessity defence and won in the Supreme Court: United States v Oakland Buyers' Cooperative (2001) 532 US 483.

However, since the people receiving marijuana under the Compassionate Investigational New Drug program were parties to a settlement with the United States, the United States must continue the program for them despite the Supreme Court confirming its illegality (or, to be more precise, confirming that absent a settlement it would have been illegal).

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  • Thank you Patrick. I like this answer, but I'd like to see if anyone else agrees that it's this simple. I'm wondering where the provisions are that allow the government to ignore it's own laws concerning the CSA. As Nij said, it may even be located in a separate law. But if it's not, then wouldn't that mean the federal government is breaking the law in order to fulfill it's settlement? – Cannabijoy Jan 11 '17 at 21:58
  • That would be like if I made a contract to provide Marijuana to my friend for life, and then stopped. So he sues me, and since I'm bounded to provide him Marijuana, I must continue to grow it and he can legally possess it. Do you think that would hold up in court? Or would that be a good separate question to ask? Thank you. – Cannabijoy Jan 11 '17 at 21:58
  • @Joshua In that scenario, your contractual obligation to supply marijuana, being an illegal act, is unenforceable as a matter of contract law. A criminal settlement does not legalise an illegal act but it facilitates the illegal act by neutralising the state's ability to enforce the criminal law. – Patrick Conheady Jan 12 '17 at 10:39

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