Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.
Deep within the spending bill passed by Congress this weekend is a remarkable – and little-noticed – provision: an effective end to the federal ban on medical marijuana. Under the provision, states where medical marijuana is legal are now immune to federal raids of marijuana dispensaries. Although this has been Obama Administration policy since 2013, the new bill actually codifies this ban into law for the first time.
The pro-legalization crowd is taking a victory lap over this new measure, but security clearance holders need to dig a bit deeper into what the new law actually does and does not accomplish.
To start, understand that the new law does NOT broadly legalize marijuana on the federal level. It applies only to “medical” marijuana, and only in states where medical marijuana has already been legalized by state law. Thus, if you live in a state where medical marijuana has not been recognized, the feds can still come after you for growing or sales. Likewise, if you live in a medical marijuana state but lack a medical marijuana license, you receive no protection under this law.
Federal Enforcement vs. Endorsement
Secondly, a ban on federal enforcement in some circumstances does not necessarily translate into a federal endorsement of medical marijuana. The DEA still classifies marijuana as a dangerous drug, and certain agencies like the FBI are still perfectly entitled to maintain their strict prior marijuana usage hiring limits.
With that all being said, there is a possibility that under the right circumstances a case could now be made for a medical marijuana exemption to the federal security clearance guidelines. If such an exemption were to be created (and, to be clear, it has not been), the criterion would mirror those in the new law along with a few likely additions:
- That the medical marijuana usage in question must have transpired after the new law becomes effective (if it was illegal when you used it, a criminal conduct allegation will still likely occur);
- That you did not use medical marijuana while in a sensitive position, such as a judge, law enforcement officer, or security official;
- That the usage of medical marijuana does not impair your judgment regarding the protection of classified information; and,
- That your usage of medical marijuana cannot be cause for blackmail.
The newness of this law means that there are still a number of questions regarding implementation and the effects on security clearance adjudications. Accordingly, while I don’t advise security clearance holders to rely on it as their golden ticket out of a marijuana security rap, it is worth noting that the law may provide some flexibility for creative legal arguments where none previously existed.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.