An administration seemingly torn between positions on states’ rights
and enforcement of federal law is being urged by lawmakers to continue
a policy established under the Obama administration of not applying U.S.
Justice Department (DOJ) resources to prosecute federal marijuana laws
in states that have legalized its use.
A group of senators issued a letter asking the incoming head of the Justice
Department to respect state rights by offering assurances they will not
interfere with the implementation of cannabis laws in their respective
states. Marijuana sale and use are still considered illegal at the federal
level as a Schedule 1 drug in the Controlled Substances Act.
Attorney General Jeff Sessions has long opposed recreational marijuana
use as a senator. However, now that he is heading up the Justice Department,
some legislators fear he may begin to crack down on state-sanctioned cannabis
use, regardless of voter-approved measures legalizing the cultivation
and use of the substance.
With Washington, Colorado, and now, California and six others legalizing
recreational use, state officials are counting on the extra tax revenue
generated from cannabis businesses to fill government coffers. So, there
is little surprise that these states would seek help from their members
of Congress to solicit the new attorney general to maintain the status quo.
In a 2013 memorandum, dubbed the “Cole Memo,” the DOJ indicated
it would not aggressively pursue marijuana enforcement in states that
legalized its use. In part, the memo said, "In jurisdictions that
have enacted laws legalizing marijuana in some form and that have also
implemented strong and effective regulatory and enforcement systems to
control the cultivation, distribution, sale and possession of marijuana,
conduct in compliance with those laws and regulations is less likely to
threaten the federal priorities."
The key words in that memo holding the feds at bay are “…strong
and effective regulatory and enforcement systems.” Keeping that
in mind, the majority of new states legalizing the recreational use of
marijuana have provided the lead time needed to develop rigorous and comprehensive
oversight systems. Lawmakers keenly understood that new cannabis laws
would need to be much more robust if they wanted to keep the federal government
out of their business.
It still is not clear what Attorney General Sessions intends to do after
implementation of recreational use in states that have approved cannabis,
yet with statements coming out of the White House drawing questions, some
states are not taking any chances. "It is essential that states that
have implemented any type of practical, effective marijuana policy receive
immediate assurance from the DOJ that it will respect the ability of states
to enforce thoughtful, sensible drug policies in ways that do not threaten
the public's health and safety," the senators' letter said.
The group of lawmakers, consisting mostly of Democrats, are claiming that
clear guidance from the DOJ will allow states to protect growth in tax
revenue, infrastructure spending, and the jobs that come along with cannabis
Supporting the senators’ position, the Rohrabacher–Blumenauer
Amendment attached to the Consolidated Appropriations Act of 2017 states
that no federal funds from that act may be used "to prevent any [state]
from implementing their own laws that authorize the use, distribution,
possession, or cultivation of medical marijuana.” The amendment
will be effective until September 30, 2017 unless reauthorized by Congress.
The Rohrabacher–Blumenauer Amendment became law after President
Trump signed it on May 5, 2017; however, he added a signing statement
that provided a little wiggle room. The signing statement read, "Division
B, section 537 provides that the Department of Justice may not use any
funds to prevent implementation of medical marijuana laws by various States
and territories. I will treat this provision consistently with my constitutional
responsibility to take care that the laws be faithfully executed."
While some have interpreted the statement as a reservation by the Trump
administration for the right to enforce federal laws at some point in
the future, during the campaign, the rhetoric coming out of the Trump
camp indicated that he supported states’ rights on medical marijuana
laws. Early comments from White House spokesperson Sean Spicer also made
senators nervous about the intentions of the incoming AG. Spicer indicated
that there is a difference between marijuana used for medicinal purposes
and recreational use.
While Spicer did not elaborate on what position the DOJ would take on legal
cannabis, Sessions has previously said that he believes we would have
a “better, healthier nation” if we did not allow marijuana
to be sold at “every corner grocery store.” Others note that
while Jeff Sessions is very much a “law and order” guy, he
is also extremely dedicated to respecting states’ rights.
In their letter, the senators pointed to the fact that states which have
legalized marijuana have set up a comprehensive tax and regulatory infrastructure
to provide for the safe sale and use of cannabis. They believe that by
receiving assurances from the federal government that they will not interfere
with state operations, it will provide investors with the confidence they
need to participate in cannabis businesses.
One of the biggest obstacles states face in implementing legal marijuana
is government banking regulations. In California, state Treasurer John
Chiang formed an economic roundtable to identify and attempt to remedy
the problems the cannabis industry faces under federal banking restrictions.
He is calling on D.C. lawmakers to put forward legislation that would
decriminalize marijuana banking. Many banks still will not accept cannabis-related
deposits because of the risk posed to their federal charters and FDIC
In issuing the letter, the senators hope that it will at least provide
a bit of influence over the AG’s looming decision on enforcement,
saying, “As attorney general, you have the power to determine the
federal government's law enforcement priorities, including how agency
resources can be best utilized. We believe that the Cole Memorandum provides
a strong framework for effectively utilizing the DOJ' s resources
and balancing the law enforcement roles of the federal government and
Dennis Baranowski for more information.