Noted anti-pot crusader Jeff Sessions has been confirmed as the new U.S. Attorney General, so where does that leave marijuana legalization? It depends on whom you ask, but the pro-pot crowd has 1 thing in common: They’re nervous.
A Nervous Marijuana Industry
If you work in the marijuana industry, no one should blame you for being nervous about Sessions’ appointment. This is, after all, a guy who once said that “good people don’t smoke marijuana” and who urged former attorney general Loretta Lynch during her confirmation hearings to oppose state-level legalization. Sessions has even expressed support for giving drug dealers the death penalty.
Seven months before President Trump announced that Sessions was his pick for attorney general, Sessions convened a Senate drug hearing blasting the U.S. Department of Justice for not taking a tougher stance on recreational marijuana, and referred to pot as a “dangerous” drug. [1]
Since the announcement was made that Sessions would be given the top legal authority in the land, business deals have gone bust and share prices have been disrupted. According to industry experts, some businesses were driven back underground by the Sessions choice, and once-enthusiastic investors were scared away. Growers have become fearful of raids, and cannabis companies are looking into ways to keep their records away from investigators’ prying eyes. [2]
Said Sasha Kadey, chief marketing officer for Greenlane, which distributes cannabis accessories such as vapor smoking devices:
“Everyone’s back into wait-and-see mode, because one doesn’t want to paint a target on one’s back.”
Nerve-Wracking Potential Scenarios
In the past, Trump has expressed support for state marijuana laws, but he hasn’t addressed the subject since November 8, which was the biggest day for marijuana reform since 2012.
But undoing all the progress that’s been made in marijuana legalization would be simply for Sessions. All he would have to do is rescind the Cole Memo. [1]
The Cole Memo (named for its author, Deputy Attorney General James Cole) was issued by the Department of Justice in August 2013 and offers guidance to prosecutors and law enforcement on where to focus its marijuana efforts. It includes 8 federal guidelines on marijuana law enforcement:
Prevent distribution of marijuana to minors
- Prevent marijuana revenue from funding criminal enterprises, gangs or cartels
- Prevent marijuana from moving out of states where it is legal
- Prevent use of state-legal marijuana sales as a cover for illegal activity
- Prevent violence and use of firearms in growing or distributing marijuana
- Prevent drugged driving or exacerbation of other adverse public health consequences associated with marijuana use
- Prevent growing marijuana on public lands
- Prevent marijuana possession or use on federal property
The memo was written because DOJ officials concluded it would be “very challenging” to successfully bring a lawsuit preempting state decriminalization. Those officials said that while it might be possible to prevent a state from regulating marijuana, it would do more harm than good.
Without coming out and saying “don’t go after states where cannabis is regulated,” the Cole Memo makes it clear that the focus of law enforcement should be on preventing pot from moving into states where it has not been legalized, and on the criminal elements that attempt to go up against the guidelines.
Trashing those guidelines would make it easier for the feds to crack down on state regulation and, ultimately, bring it to an end. So what would that look like? Drug policy expert John Hudak told The Cannabist:
“I can see Jeff Sessions, an hour after taking the oath, rescinding the Cole Memo. I don’t think he’s necessarily going to do that, but he can.
That leaves governors in very difficult places. It does not necessarily create policy change in itself, but what it does is create tremendous uncertainty.
The attorney general, the (U.S. Drug Enforcement Administration), the (Federal Bureau of Investigation), do not have the budget or the manpower to physically enforce the Controlled Substances Act nationwide, so it’s not like you could see agents come into every storefront in the United States tomorrow and deal with this.
That’s not a reality. But it’s difficult for policy makers. It’s difficult for elected officials. It’s going to rock the boat around investment and I think any advances that have been made on banking, on security, on real estate, state by state, city by city or whatever.” [1]
If Sessions decides to go after cannabis, it would require “filing lawsuits, asking courts for injunctions, asking courts for restraining orders” Hudak says. He adds:
“If I were advising Jeff Sessions — I’m certainly not — if I was asked to provide the quickest stab to the heart of what you can do, I would say: File an injunction against the eight governors who just legalized medical and recreational marijuana, freezing their systems in place. That includes California, and that’s a killer.”
In states with few growers and dispensaries, the DEA and FBI could step in and shut all of those places down in a day.
So, yeah, it makes sense that people in the marijuana industry – and marijuana users – are concerned.
Fighting Back
If Sessions wants to devour legalization efforts, he won’t go unchallenged. A team of federal lawmakers are just as nervous about the future of legalization as pot shop owners in Colorado, and they’re pushing Congress to get serious passing reforms in the 2017 session. [3]
U.S. Representatives Earl Blumenauer, Jared Polis, Dana Rohrabacher and Don Young have banded together under the moniker “Congressional Cannabis Caucus” to reintroduce a series of marijuana-related bills in the weeks ahead intended to protect the legal marijuana industry from anything Sessions can dish out.
One of the bills, the “Regulate Marijuana Like Alcohol Act,” aims to remove marijuana from the Controlled Substances Act and make pot as socially acceptable as alcohol.
As much as Jeff Sessions detests marijuana and looks down on marijuana users, even he admits that if Congress stepped up and changed the laws, it would settle the issue once and for all.
During his confirmation hearing, Sessions said:
“I think one obvious concern is that the United States Congress made the possession of marijuana in every state and distribution of it an illegal act. So if we need to…if that’s something [that] is not desired any longer, Congress should pass a law to change the rule. It is not so much the Attorney General’s job to decide what laws to enforce. We should do our job and enforce laws effectively as we are able.”
Sources:
[1] The Cannabist
[2] Fortune
[3] Merry Jane
