Back in October 2009, the Obama Justice Department issued a memo that some interpreted as discouraging federal raids on medical marijuana dispensaries operating in states where medical marijuana is permitted under state law. I pointed out at the time that the memo imposed few if any genuine restrictions on federal prosecution of medical marijuana producers. Certainly, it fell far short of implementing Barack Obama’s 2008 campaign promise to stop medical marijuana prosecutions in states where medical marijuana is legal.
Now the Justice Department has issued a new memo to federal prosecutors emphasizing that it has no intention of discouraging federal medical marijuana prosecutions, regardless of state law:
The Department’s view of the efficient use of limited federal resources as articulated in the  Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes…..
The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. [emphasis added]
Some will argue that the administration has no choice but to enforce these laws. However, prosecutorial discretion gives the executive the power to decide not to pursue these cases if the president so chooses. Indeed, the federal government can only prosecute a small fraction of the numerous violations of today’s overbloated federal criminal law. The average American commits about three federal felonies every day. Every administration must inevitably prioritize some federal laws over others.
There is no legal obstacle preventing the president from keeping his campaign promise. The problem is lack of political will. The hesitation is remarkable in light of the fact that polls show that some 81 percent of the public supports legalization of medical marijuana.