“More Bark than Bite”? A.G. Sessions’ Promise to Return to Marijuana Enforcement

FILIP GRZELAK—As of January 2018, use of marijuana—either medical or recreational—is legal in 29 states and in the District of Columbia. However, under the federal law, possession of marijuana remains illegal and punishable by jail and monetary fines. In 2009, the Obama Administration decided it would not interfere with state marijuana laws, thereby limiting the enforcement of relevant federal law. Now, in the first days of 2018, Attorney General Jeff Sessions has apparently reversed course, announcing that U.S attorneys will “return to the rule of law” by rescinding some of the Obama-era Department of Justice (DOJ) guidelines. While some warn that the Trump Administration genuinely wants to curb the marijuana legalization movement, others say that, despite the announcement, the Administration is unlikely to go after the marijuana producers, distributors, and users acting lawfully under state laws.

The current federal drug enforcement law, known as the Controlled Substances Act (CSA), was enacted in 1970 by a Democratic Congress and signed into law by President Richard Nixon. The law prohibited the cultivation, distribution, and possession of various drugs—including marijuana—and established five “schedules,” which categorize substances according to their potential for abuse, accepted medical use, and physical and psychological dependence. Marijuana (still spelled as “marihuana” by the CSA) is classified as a “Schedule I” substance with “a high potential for abuse,” with “no currently accepted medical use in treatment,” and lacking “accepted safety for use of the drug or other substance under medical supervision.” The Drug Enforcement Administration (DEA), created by the Nixon Administration and Congress in 1973, is the primary federal agency tasked with enforcing the CSA.

The Obama Administration, complying with Obama’s 2008 campaign trial promises, discouraged U.S. attorneys from enforcing federal marijuana laws in states that legalized the drug. Initially, in 2009, when twelve U.S. states already legalized medical marijuana, the Ogden memorandum advised that U.S. attorneys in these states “should not focus federal resources . . . on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” The 2013 Cole memorandum extended the policy of non-enforcement by stating that the DOJ would only focus on “the most significant threats [such as distribution to minors, drug trafficking across state lines, or fighting drug cartels] in the most effective, consistent, and rational way.” The DOJ would leave “lower-level or localized activity to state and local authorities,” thus practically giving states a free hand in regulating marijuana.

Enforcement of the CSA was further limited by the 2014 Rohrabacher-Farr amendment (currently known as Rohrabacher-Blumenauer) which prohibits the DOJ from spending funds “to prevent [states] from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” However, the 2014 amendment must be renewed annually and the current provision is set to expire on January 19, 2018. Attorney General Sessions opposes the amendment and wants Congress to exclude it from the 2018 appropriation bill (which specifies how much money can be spent on a given federal program). In a May 2017 letter to the congressional leaders, Sessions complained that the courts interpret the provision too broadly by practically prohibiting the DOJ from prosecuting violations of the CSA in medical marijuana cases by entitling defendants to evidentiary hearings to determine whether their conduct was authorized by state medical marijuana laws. (For example, see United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016).) Sessions is a well-known long-term opponent of drug use which reflects in his unfortunate “silly comment” that he made years ago: “I thought those guys [the Ku Klux Klan] were OK until I learned they smoked pot.”

Sessions’ announcement to rescind Ogden and Cole memoranda and the prospect of convincing Congress to reject the Rohrabacher-Farr amendment—if not for 2018, then for 2019—brought many mixed reactions and comments from the public, the marijuana industry, and the states. DOJ’s possible crackdown on state marijuana laws is most closely followed in the six western states that allow the cultivation, distribution, and use of both medical and recreational marijuana. In Colorado, where annual revenue from taxing marijuana passed $200 million in 2016, Governor John Hickenlooper expects Sessions’ announcement to “end up being more bark than bite.”

Theoretically, if the DOJ and the DEA want to go after cultivators, distributors, and users of marijuana, they will be allowed to do so under the Supremacy Clause of the U.S. Constitution. But, as a practical matter, there are at least two reasons why they are unlikely to do so. First, U.S. attorneys have limited resources that they concentrate on prosecuting more “serious” offenses involving violent crime, drug- and human-trafficking, and white-collar crime. Also, according to Governor Hickenlooper, heroin and rampart opioid abuse are probably much higher priorities than medical and recreational marijuana. Second, marijuana legalization is quite popular and crusading against it could be politically unwise for the Trump Administration. In addition to the 29 states and D.C. that have already legalized some type of marijuana cultivation, distribution, and use, many other states and local communities decriminalized personal use of the substance. Here in Florida, for example, city ordinances decriminalizing marijuana were passed in Tampa, Orlando, and Miami-Dade (though police officers may still choose to write a civil citation).

Even if Sessions’ memorandum ends up not changing the current policy of the federal government, that of largely not interfering with state marijuana laws, it will still leave open the question of how to reconcile the existence of the CSA and the state laws allowing medical and recreational marijuana. As of now, the only imaginable solution—seemingly inevitable at some point in the future—is federal decriminalization of medical and recreational marijuana.

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