Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Saturday, December 16, 2017

Taking a lengthy look at the ever-uncertain state of federal marijuana policies and practices

Jeff-Sessions-marijuana-702x336Politico magazine has this lengthy (but somewhat superficial) article on the current state of federal marijuana debate and discourse under this full headline: "Jeff Sessions Isn’t Giving up on Weed. He’s Doubling Down. Congressional dysfunction may do what the pot-hating attorney general hasn’t managed to do all year: Remove protections for the booming legal weed industry."  The article is worth reading in full, and here are excerpts from the start of the article that in part explain my "superficial" adjective:

“I won’t commit to never enforcing federal law, Senator Leahy,” Sessions replied [to a question at his confirmation hearing], suppressing a slight smirk.  That double negative tightened the knot in every drug policy reformer’s gut.  Exactly how vulnerable were the nascent marijuana industries in the 29 states where it was now legal? Would Sessions, who rarely misses an opportunity to bemoan the scourge of marijuana, sweep aside the paper-thin order imposed by the Obama administration that had stayed the enforcement hand of the Department of Justice? Would SWAT teams arrest wheelchair-bound medical marijuana patients, raid marijuana dispensaries and shut down the high-tech growhouses that supplied them?

The dreaded crackdown never materialized. Sessions, perhaps preoccupied with other priorities like keeping his volatile boss from firing him, remained largely inactive on the subject.  Meanwhile, a series of incremental advancements on the pro-marijuana front helped to further enmesh the $9.7 billion industry into the commercial fabric of the nation, 60 percent of whose residents support some form of legal pot.  California opened the doors to recreational marijuana and issued regulations for outdoor marijuana festivals; Florida began its implementation of a medical marijuana program; and Denver and Las Vegas are vying to become the first city in America to legalize “marijuana consumption lounges” (think high-end bars with expensive weed choices instead of booze).  Sessions, for his part, has spent his time in testy exchanges with DOJ interns and convening meetings with small groups of like-minded anti-pot activists determined to roll back state-level momentum. “I do believe … that the public is not properly educated on some of the issues related to marijuana,” he told one such group on Friday.

But things are suddenly looking rosier for Sessions.  Thanks to Congress’ fumbling over the spending bill, the AG’s yearning to battle legal marijuana may get a major boost without him having to lift a finger.  That’s because Rohrabacher-Farr, a little-known and even less discussed amendment that protects state-legal medical marijuana programs from federal interference, is close to expiring.  If the government shuts down at the expiration of the current continuous resolution on December 22, or if negotiations in an upcoming appropriations conference committee fail to insert it in the final draft of the spending bill — entirely possible given House Republicans’ hostility to marijuana — Sessions would be free to unleash federal drug agents on a drug, which according to federal drug law, is considered the equal of heroin and LSD.

The politics on this issue has shifted so dramatically that reform advocates, instead of quaking in their boots at Sessions’ saber rattling, are actually itching for the fight. “Part of me just thinks: Let ‘em try. There will such a ferocious backlash,” Rep. Earl Blumenauer of Portland, Oregon, told POLITICO Magazine in response to a question about a potential Sessions-led crackdown.  (Blumenauer replaced Sam Farr as the amendment’s Democratic co-sponsor after Farr’s retirement, so in a turn that does not help its branding efforts, Rohrabacher-Farr is now called Rohrabacher-Blumenauer.)  Morgan Fox, communications manager of the Marijuana Policy Project, agreed with Blumenauer: “There’s no way that Sessions can start rolling back medical marijuana policies or attacking patients and providers without looking like the bad guy.”

Still, with the legislative barrier gone, there would be plenty of ways for Sessions to make life difficult for marijuana businesses without creating dramatic footage for the nightly news.  Fox worries less about SWAT team raids than the possibility the Department of Justice would quietly send letters to landlords who rented to legal marijuana businesses to threaten them with asset forfeiture.  People would be forgiven for thinking that state-legal medical marijuana was a settled issue, but in fact it is hanging by a thread, and Congress is poised to hand Jeff Sessions the scissors.

The rest of this article usefully reviews critical statements by AG Sessions about legalized marijuana, and also discusses the current state and politics surrounding the Cole Memo and the (soon to expire) congressional limit on DOJ spending to prosecute medical marijuana businesses.  But I call this article "superficial" because it does not discuss in any detail just whether and how AG Sessions would be able to effectively "unleash federal drug agents," particularly as to players in the medical marijuana arena. 

As this excerpt usefully highlights, there are "plenty of ways for Sessions to make life difficult for marijuana businesses without creating dramatic footage for the nightly news," but none of those ways have been used at all by the Sessions-led Justice Department for now 11 months in power.  And during those 11 months, Nevada (and soon California) has joined a handful of other active western recreational marijuana states, and swing states like Florida and Ohio and Pennsylvania have seen medical marijuana regulations emerge and an industry start to develop.  Especially as an ever-growing number of red states are embracing significant medical marijuana programs (e.g., Arizona, Arkansas, Montana, North Dakota, West Virginia), it seems there are an ever-growing number of GOP politicians who would be very troubled if AG Sessions started a very serious crack-down on the state-legal medical marijuana industry.

For reasons I somewhat explained/predicted in this post last year, I think AG Sessions' political instincts have led him to (rightly) believe it would not be a good use of his (or the President's) political capital to take on state marijuana reforms aggressively.  And, especially with the seemingly anti-Trump outcomes in recent elections in Alabama, New Jersey and Virginia, I do not think the politics are really any easier now.  I do think that opponents of marijuana reform are coming to believe and fear that, without an enforcement push by AG Sessions very soon, additional state-level reforms in 2018 and beyond will make curtailing the industry even that much harder in the future.  And so I am sure prohibitionists are pushing hard for AG Sessions to do something, anything, to slow the tides of marijuana reforms.  So maybe prosecution/forfeiture letters are being written as I type this.  Stay tuned.

http://lawprofessors.typepad.com/marijuana_law/2017/12/taking-a-lengthy-look-at-the-ever-uncertain-state-of-federal-marijuana-policies-and-practices.html

Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink

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