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. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws. The Department of Justice is tasked with enforcing existing federal criminal laws in all states, and enforcement of the CSA has long been and remains a core priority.

Where did the Ogden memo exclude medical marijuana growers operating in compliance with state law? It said:

As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. (my emphasis.)

Since all marijuana cultivation, marketing and sale is unlawful under federal law, the word "unlawful" in the last sentence is superfluous unless it is referring to state law. If they didn't mean it to refer to state law, the sentence would have read:

On the other hand, prosecution of commercial enterprises that market and sell marijuana for profit continues to be an enforcement priority of the Department.

States are licensing commercial enterprises to grow marijuana for medical marijuana patients. If in compliance with state law, they are not operating illegally in that state. Under the Ogden memo, they were covered. Further indication the Odgen memo never meant to bar commerical enterprises operating in compliance with state law: The next sentence reads:

To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department's core enforcement priorities. (my emphasis)

It didn't say:

Compliance with state or local law is inconsistent with federal law and federal law enforcement should not be deterred by such compliance when pursuing the Department's core enforcement priorities.

Which is what yesterday's memo clearly says. Also note the "clarification" in yesterday's memo to the definition of "caregiver."

The term "caregiver" as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.

That's not what the Ogden memo said. It said:

As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department.(my emphasis.)

State laws allowing medical marijuana use allow caregivers to grow and provide marijuana to patients. The Ogden memo said caregivers who provide marijuana to patients in compliance with state law are an example of those against whom federal law enforcement resources should not be directed. Only unlawful commercial enterprises were excluded.

This is not a clarification, it's a bait and switch. Of course, the Ogden memo was never the panacea the media trumpeted it to be. It ended with:

Indeed, this memorandum does not alter in any way the Department's authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not "legalize" marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter.

Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.

What a worthless guide it turned out to be. Shorter version: Federal marijuana policy today is the same as it ever was, under Bush, Clinton, Reagan and Nixon. In this, the 40th year of the war on drugs, the only sure thing is there will be a 41st year.